ON
BEHALF OF THE
OF THE
of the Supreme Court of the
in connection with the
complaint of R. Salamov
30
October 2007
Plenum of the
Constitutional Court of the Republic of Azerbaijan composed of F.Abdullayev (Chairman),
S.Salmanova, F.Babayev, S.Hasanova, B.Garibov, R.Qvaladze(reporter judge),
E.Mammadov, I.Nadjafov and A.Sultanov,
with participation
of the secretary I.Ismayilov,
applicant R.Salamanov
representative of
respondent body – B.Asadov, Judge of the Supreme Court of the
in accordance with Article
130.5 of the Constitution of the Republic of Azerbaijanexamined in open judicial
session via special constitutional proceedings the case on verification of conformity of decision of
the Judicial Board on Civil Cases of the Supreme Court of the Republic of
Azerbaijan as of 3 April 2007
to Constitution and laws of the Republic of Azerbaijan in connection with the
complaint of R.Salamov.
Having heard the
report of Judge R.Qvaladze, speech of applicant R.Salamov and respondent
B.Asadov, having considered materials of the case, Plenum of the
DETERMINED
AS FOLLOWS:
By 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) dated November 14, 2006 the above-mentioned decision of district
court was cancelled and the claim of N. Yagubzade was satisfied.
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 April 3, 2007 upheld the judgment of court of appeal instance.
In response to R. Salamov's complaint made as the additional cassation,
the letter of the Chairman of the Supreme Court informed him that there were no
grounds for consideration of the complaint on the Supreme Court Plenum.
In the complaint addressed to the Constitutional Court of the Republic of
Azerbaijan (hereinafter referred to as the Constitutional Court), the applicant
asks to verify conformity of the decision of court of cassation instance to the
Constitution and laws of the Republic of Azerbaijan.
The applicant substantiated the constitutional complaint by the
following.
On October 22, 2002 his marriage with N. Yagubzade was dissolved by
department of the State Registry of Narimanov district of the
Being
guided by the above requirements of the legislation, the applicant considers
that because of submission of the requirement of N. Yagubzade about the division
of joint property of spouses after expiration of term of limitation of action, court of first instance quite fairly refused in satisfaction of the
claim, having provided in the decision this basis along with other ones.
The court of appeal instance which cancelled
the decision of this court and made the new decision and then the court of
cassation instance which uphold the decision of this court without having
attached any significance to the arguments containing in his appeal and
cassation complaints concerning the expiration of term of limitation of action according to N. Yagubzade's statement, in the adopted judicial acts did
not reacted to noted moment at all.
Because the main argument of the
constitutional complaint connected with term of limitation of action, Plenum of the
Terms of limitation of action are
one of the institutes of the civil legislation representing importance from the
point of view of settlement of disputes. In many decisions, Plenum of the
Plenum of the Constitutional Court in the decision as of December 27,
2001 “On interpretation of the Article 373 of the Civil Code of the Republic of
Azerbaijan” noted that limitation of action disciplines the participants of legal relationships, obliges
them to protect theirs rights in due time, promotes the contractual and
financial discipline; promotes elimination of vagueness and instability in civil
legal relationships; provides judicial bodies with possibility to resolve
disputes on the ground of objective truth, eliminating the possibility for
parties concerned to turn to the long-standing evidences whose validation is
either impossible or too difficult.
The European Court of Human Rights in the decision as of January 25,
2000 on case of Miragall Escolano and others v. Spain came to such conclusion that the rules governing the formal steps
to be taken and the time-limits to be complied with in lodging an appeal are
aimed at ensuring a proper administration of justice and compliance, in
particular, with the principle of legal certainty. Litigants should expect
those rules to be applied.
As appears from case materials, objecting to the claim in the statement
brought into court of the first instance, R. Salamov specified that a marriage
with N. Yagubzade was dissolved by department of SR, and there were no disputes
between them at divorce. N. Yagubzade appealed to court with the statement of
claim with the requirement of division of property after the 3-year term
provided by the Article 36.9 of the Family Code. Being guided by the Article
375.2 of the Civil Code, R. Salamov asked to apply limitation of action to the
claim demand made against him by N. Yagubzade.
Court of the first instance, having refused to satisfy the claim of N.
Yagubzade, came in the decision to conclusion that the challenged apartment was
acquired on own means of R. Salamov before a marriage between R. Salamov and N.
Yagubzade.
The court in this decision also came to a conclusion about need of use
of limitation of action to the relations of the parties. The court established
that though marriage between R. Salamov and N. Yagubzade was terminated on
October 22, 2002, and N. Yagubzade in the filed a lawsuit statement of claim
with the requirement of the section of property specified date on October 22,
2005, nevertheless, actually appealed to court with this statement of claim on
November 23, 2005.
Court, considering R. Salamov's request for use of limitation of action and
confirmation of this requirement the documents that are available in case,
being guided by Article 36.9 of the Family Code refused to satisfy the claim.
As evident, court refused to satisfy the claim of N. Yagubzade on the
ground that R. Salamov got the challenged apartment on own means before a
marriage, and N. Yagubzade addressed to court after expiration of limitation of
action.
N. Yagubzade, having made the appeal complaint to the specified
judgment, asked to cancel the decision.
R. Salamov along with other bases specified in the application with
objection submitted against a complaint that N. Yagubzade addressed after expiration
of limitation of action, and asked to uphold a judgment of the first instance.
The JBCC of the Court of Appeal by the decision as of November 14, 2006,
having satisfied the appeal complaint of N. Yagubzade, cancelled a judgment of
the first instance and satisfied claims of N. Yagubzade. The court of appeal
instance came to conclusion that the challenged apartment was acquired during
joint marriage, sale of the apartment by R. Salamov without consent of N.
Yagubzade who is the joint owner violated of her property right protected by
the law. At the same time, the court of appeal instance shelve R. Salamov's
arguments concerning the address of the claimant after expiration of limitation
of action.
Plenum of the Constitutional Court considers that the court of appeal
instance by consideration of this dispute broke to requirements of Article 60.1,
parts II and VII of Article 127 of the Constitution of the Republic of Azerbaijan
(hereinafter referred to as the Constitution), Articles 9.1, 9.3 and 88 of the
Civil Procedural Code of the Republic of Azerbaijan (hereinafter referred to as
the CPC).
Thus, according to Article 60.1 of the Constitution, legal protection of rights and liberties of
every citizen is ensured.
In a number of the adopted decisions Plenum of the Constitutional Court
noted that in international law (Article 8 of the Universal Declaration of Human
Rights, point 1 of Article 14 of the International Covenant on Civil and
Political Rights, point 1 of Article 6 of the Convention on Protection of Human
Rights and Fundamental Freedoms) legal protection is perceived as effective
restoration of the rights by independent court on the basis of fair trial.
As the basic principles of implementation of justice are fixed impartial, fair, juridical equality of
parties, based on facts and according to the law (Article 127.2),
implementation of legal proceedings on the basis of the on the principle of contest(Article 127.7).
According to these provisions, justice is exercised
based on facts, principle of contest and equality of parties. Judge shall
always secure compliance with the principle of contentiousness. Judge should
base his decision solely upon reasons discussed in compliance with the
principle of contentiousness, explanations and documentation submitted by
parties. Court evaluates evidence in a fair, impartial, all-complete and full
manner and thereafter evaluate norms of law to apply to such evidence (Articles 9.1, 9.3
and 88 of the CPC).
The principle of implementation of justice on the basis of equality and
competition of the parties extends on all stages of civil process, including on
appeal and cassation procedure.
By the Article 365 of the CPC it is established that in appeal procedure
provisions of this section (section 41) and this Code shall be applied.
According to these provisions of procedural legislation, case in court of
appeal instance along with the features specified in section 41 of the CPC
establishing procedure in this court are considered according to principles of
civil process, including the principle of possession by parties of equal rights
and opportunities.
Court of appeal instance, without having executed the principles of
implementation of justice specified in the Constitution and the civil and
procedural legislation on the basis of contest, equality of the parties and the
facts, did not discuss the arguments presented by R. Salamov concerning the
address to court of claimant after expiration of limitation of action.
According to the Article 372.6 of the CPC in case if the complaint is
directed on cancellation of the decision or when proceeding from the arguments
stated in the appeal complaint and objections on it the subject of dispute is
indivisible, the court of appeal instance completely verify validity of a
judgment of the first instance.
According to Article 372.7 of this Code, the court of appeal instance,
irrespective of arguments of the complaint, verify observance of norms of a
substantive and procedural law by court.
Without having followed instructions of provision of the law, the court
of appeal instance did not take any actions directed on verification of
legality and validity of a judgment of the court of first instance in the part
concerning limitation of action.
According to the civil and procedural legislation, the court of
cassation instance verify the accuracy of application by court of appeal
instance of norms of a substantive and procedural law.
Violation or the wrong application of norms of a substantive and
procedural law forms the basis for cancellation of the decision and ruling of
court of appeal instance. Violation or the wrong application of norms of a
procedural law can form the basis for cancellation of the decision or ruling
when this violation brings or can lead to adoption of the wrong decision (Articles
416, 418.1 and 418.3 of the CPC).
Despite the arguments presented by R. Salamov in the appeal concerning
non-use of appeal instance of limitation of action by court, the court of
cassation instance did not pay due attention to the correct application of
appeal instance of norms of a procedural law by court, having adopted as a
result the decision which is not meet the requirements of Articles 416, 418.1
and 418.3 the CPC that, in turn, led to violation of the principle of effective
restoration of the rights of the applicant on the basis of carrying out fair trial
by independent court – one of important elements of the legal protection of his
rights and freedoms fixed by Article 60.1 of the Constitution.
On the basis of the above Plenum of the Constitutional Court comes to
conclusion that the decision of JBCC of the Supreme Court of April 3, 2007
because of discrepancy with Article 60.1 of the Constitution, with the Articles
416, 418.1 and 418.3 of the CPC has to be recognized as null and void, and case
has to be reconsidered an order and the terms established by the civil
procedure legislation of the Republic of Azerbaijan.
Being guided by parts
V and IX 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:
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.
