ON BEHALF OF THE REPUBLIC OF AZERBAIJAN
OF THE PLENUM OF THE CONSTITUTIONAL COURT
OF THE REPUBLIC OF AZERBAIJAN
On verification of conformity of decision of the Judicial Board on Civil Cases
of the Supreme
Court of the Republic of
Azerbaijan as of 16 August 2007 to
Constitution and laws of the
Republic of Azerbaijan
in connection with the complaint of Kenul Garibova
8 May 2008 Baku city
Plenum
of the Constitutional Court of the Republic of Azerbaijan composed of
F.Abdullayev (Chairman), S.Salmanova, F.Babayev, S.Hasanova, B.Garibov(reporter
judge), R.Qvaladze, E.Mammadov,I.Nadjafov and A.Sultanov,
with
participation of the secretary I.Ismayilov,
applicant
K.Garibova and her representativeG.Isganderov
representative
of respondent body – R.Akperov, employee of Staff of the Supreme Court of the
Republic of Azerbaijan
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 16 August 2007 to
Constitution and laws of the Republic of Azerbaijan in connection with the
complaint of K.Garibova.
Having
heard the report of Judge B.Garibov, speech of the representatives of applicant
and respondent body, having considered materials of the case, Plenum of the
Constitutional Court
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) as of December 12, 2005 the appeal complaint of A.
Guseynova was satisfied, F. Aliyeva together with family members evicted from
the disputed apartment, K. Guseynov and A. Guseynova together with family
members moved into the disputed apartment, and the decision was adopted on collecting
from K. Guseynov and transfer of 27.600.000 manats (AZM)
to F. Aliyeva.
It is also specified in the complaint that on July 19,
2005 she purchased the disputed apartment from its owner at that time Tarana Nuraliyeva
for 282.000.000 (AZM) and registered it under certificate number ÖM No. 245863
issued on her name on August 25, 2005. In spite of the fact that she was the
owner of the disputed apartment and the bona fide owner, nevertheless, she was not
involved by court of appeal instance in matter as the interested person, the
decision concerning the rights and duties of her and members of her family was adopted,
the legal destiny of property decided.
By the decision of Judicial Board on Civil Cases of
the Supreme Court (hereinafter referred to as the JBCC of the Supreme Court) as
of August 16, 2006 the representation submitted by Chairman of the Supreme
Court of the Republic of Azerbaijan on the basis of the complaint of K.
Garibova, was not satisfied. At adoption of this decision the other decision of
Yasamal district court which did not enter into force of June 19, 2006 in A.
Guseynova's claims against K. Garibova and others about recognition of
contracts on purchase and sale, registration certificates as invalid and eviction
from the apartment was assumed as a basis, without having taken into account
the requirement of Article 152 of the Civil Code of the Republic of Azerbaijan
(hereinafter referred to as the CC) and Articles 416, 418.1 and 418.3 of the
Civil Procedural Code of the Republic of Azerbaijan (hereinafter referred to as
the CPC). By the letter of Chairman of the Supreme Court of the Republic of Azerbaijan
of February 12, 2007 the complaint made by him as the additional cassation was not
submitted for consideration of Plenum of the Supreme Court due to the lack of
the bases.
The applicant, having specified that as a result of
not acceptance in attention in judicial acts of a number of norms of the CC and
CPC his rights affirmed by Articles 13, 29 and 60 of the Constitution of the
Republic of Azerbaijan were violated and asks to cancel the decision of JBCC of
the Supreme Court of August 16, 2006.
Apparently from materials of a civil case, by the
decision of Yasamal district court of the city of Baku of August 31, 2001 the claim
of F. Aliyeva's against K. Guseynov for eviction from the apartment and loss of
the right for living space was satisfied.
The court proved that between the respondent K.
Guseynov and F. Aliyeva on April 3, 2001 was signed the contract on purchase and
sale No. 113 532 certified at the State Notary Office (SNO) No. 29 of Baku
city, and on his name by Department of technical inventory and registration of
the housing rights of Baku city on July 14, 2001 was issued the registration
certificate of ÖM No. 080753, and the property right to the disputed apartment
passed to the latter. Referring to the Article 178.1 of the CC establishing
that the ownership rights to immovable property
pass to the purchaser from the moment of registration of act of transfer in the
state register of immovable property, and Article 442.1 of the CC
providing the concept “non-execution of the obligation”, court having disagreed
with the arguments given by K. Guseynov and A. Guseynova connected by that they
borrowed money at F. Aliyeva, having issued in an exchange for the disputed
apartment on her name as purchase and sale that due to the lack of
opportunities to repay a debt they did not object to return of a debt from
money, received from sale of the apartment, came to a conclusion about
transition of the property right to F. Aliyeva and cancellation of their right
for the disputed apartment.
Specifying existence of consent of A. Guseynova for
notarized purchase and sale of this apartment, the court also made the decision
on cancellation of her rights for housing as co-owner.
From the minutes of court session it also appears that
A. Guseynova was present at meetings, however she did not recognize the claim.
She reported that as the family member agreed to sale the apartment of F.
Aliyeva, thus any requirements neither by her, nor by her husband to the
claimant was not filled.
According to the receipt No. 674 containing in case
papers, the copy of the decision was sent by court by mail on September 10,
2001 to the address (the disputed apartment) where K. Guseynov and A. Guseynova
live.
K. Guseynov specified in the application submitted on
August 23, 2002 to Yasamal district court that the demand made against him by
F. Aliyeva in connection with the disputed apartment is satisfied in 2001, and
asked to issue only the copy of the decision, having confirmed its receiving
with the signature.
But in the second statement of December 2, 2003 it is
specified that the copy of the decision was issued to them after year, in 2002,
and expressing categorical objection against the decision asked court to state
about possibilities of new consideration of a civil case and the result of the adopted
decision.
In the response letter of court it is brought to K.
Guseynov's attention that the copy of the decision of August 31, 2001 was sent
by mail on September 10, 2001, besides to him was again personally handed in
connection with the statement of August 23, 2002 (K. Guseynov confirmed
obtaining this letter with the signature).
From the information of the May 3, 2004 addressed by
department of judicial supervisors and officers of the court of the Yasamal
district to court it is appears that this decision was voluntary executed by
respondents without participation of their plenipotentiaries.
K. Guseynov and A. Guseynova, having filed on April 7,
2004 a petition in Yasamal district court, specified that the disputed
apartment was sold without A. Guseynova's consent, that members of the family
of the respondent are sick people and in connection with departure from the disputed
apartment could not receive in due time the copy of the decision, and asked to
restore a term of the appeal complaint in connection with the decision of
August 31, 2001 (this application is signed by A. Guseynova).
In the ruling of this court of April 16, 2004 it is
noted that the copy of the decision was issued to the parties on case,
including K. Guseynov under a personal signature because the appeal complaint
to the decision within 1 month was not made, the appeal complaint was returned
on the expiration of an established period, and the decision which entered into
force was made to execution. By the ruling of Yasamal district court of May 3,
2004 the appeal complaint made by A. Guseynova and K. Guseynov on this ruling
was not satisfied (with the indication of the above-noted circumstances) and
term is not restored in connection with the expiration of the established
procedural term (the complaint was made 28.04.2004 to A. Guseynova with the
indication of the same reasons).
The appeal complaint made on May 13, 2004 concerning
this ruling by the plenipotentiary of K. Guseynov and A. Guseynova by ruling of
this court of May 17, 2004, according to Article 269.3 of the CPC, was sent to
court of appeal instance.
The JBCC of the Court of Appeal by its ruling of June
23, 2004 having come to a conclusion, concerning that the civil case considered
in court of the first instance of concerning disputed apartment in essence with
participation of complainants, considering personal obtaining the copy of the
decision by them, according to documents of case, not making an appeal on it,
despite sufficient opportunities, and also weakness of arguments concerning
respectfulness of the reasons of the admission of the procedural terms provided
by the law for the appeal of the decision, did not satisfy the complaint,
having upheld the rulings of April 16, 2004 and of May 3, 2004.
In the appeal made on this ruling they specified that
A. Guseynova, unlike the husband was involved in process as the 3rd person
though they are joint respondents, that personally received the copy of the
decision of Yasamal district court on August 23, 2002, however in connection
with disability and an illness of the husband, K. Guseynova, for a good reason
in due time did not make the appeal complaint, and asked to cancel the ruling
of court of appeal instance as it was adopted without their participation.
In the decision of JBCC of the Supreme Court of
October 20, 2004 it was specified that at consideration of the case by court of
appeal instance the requirements of the CPC concerning informing the persons
participating in case are violated, ruling of June 23, 2004 was cancelled, case
directed to court of the same instance for reconsideration.
By the ruling of JBCC of the Court of Appeal of
February 9, 2005 the rulings of Yasamal district court of April 16, 2004 was cancelled
and the rulings connected with it of May 3 and on May 17, 2004, concerning A.
Guseynova and the civil case in this part is returned for reconsideration. The
court proved the conclusions by that the court of the first instance, without
having studied results of obtaining the copy of the decision by A. Guseynova,
came to a wrong conclusion concerning the admission of a term of the appeal
complaint for the disrespectful reason.
By the ruling of JBCC of the Court of Appeal of July
1, 2005 A. Guseynova's challenge to jury of Yasamal district court was
satisfied, and case directed for consideration on the merits to Sabunchi
district court of the Baku city. By the ruling of court of July 28, 2005 a term
of A. Guseynova appeal complaints to the specified decision was restored.
In the appeal complaint connected with the decision,
A. Guseynova specified that was not attracted as the respondent, that case is
considered secretly and without her permission, and the journal of proceeding
are added with the fictitious indication from her name as the 3rd person.
The contract concerning sale of the disputed apartment was signed without her
consent as owner, issued with use of fact that her husband is the disabled
person of the II group, this contract is debt contract, but not the contract on
purchase and sale. In the complaint it is also indicated that F. Aliyeva carried
out on September 10, 2001 alienation of the disputed apartment, asks to cancel
this decision, to nullify from the moment of the conclusion between F. Aliyeva
and K. Guseynov contracts on purchase and sale of the disputed apartment, to
cancel the registration certificate issued to F. Aliyeva, to recognize as void
all legal consequences following from this, to restore all rights of members of
her family for the disputed apartment and to move all persons, living at
present in the disputed apartment.
By the decision of JBCC of the Court of Appeal as of
December 12, 2005 the complaint was partially satisfied, the judgment of the
first instance as of August 31, 2001 cancelled, the contract on purchase and
sale between F. Aliyeva and K. Guseynov concerning the disputed apartment and the
registration certificate issued on its basis are recognized as void. The
decision on F. Aliyeva's eviction together with family members from the disputed
apartment, recognition of the housing rights of K. Guseynov and A. Guseynova
together with family members, their registration and moving in this apartment, getting
from K. Guseynov and transfer to F. Aliyeva of 27.600.000 manats was adopted.
The court proved this conclusion by that the disputed
apartment which was in a private property of K. Guseynov was sold to them by F.
Aliyeva on the basis of the contract on purchase and sale notarized on April 3,
2001. According to the notarized statement as of October 17, 2000 A. Guseynova
did not object to sale the disputed apartment belonging to her husband. However,
at registration of the contract that this statement is made for the conclusion
of other contract on purchase and sale of October 17, 2000 concerning this
apartment and receiving it subsequently by A. Guseynova back that expired
20-day period of validity of other document of Department of technical
inventory and registration of the housing rights of the Baku city (form No. 1)
was not taken into account (the state notary examined on court session as the
witness showed that the parties known that the contract signed between them is
the contract on purchase and sale that all procedural rules were observed). F.
Aliyeva concluded the contract with other intention as did not need acquisition
of the disputed apartment for improvement of living conditions, and did not present
to court the strong evidences confirming payment. These circumstances led to
violation of Articles 152.1, 157.2 (the provision on the property right and its
protection) connected with respondents, 339.1, 339.2, 339.3 (provisions
concerning stay of the person in a difficult situation and uses of it by other
party, the contracts concluded fraudulently), 347.1, 347.2.1, 347.2.3
(provisions concerning the contracts concluded under the influence of an error
of the important importance) of the CC.
In the appeal of April 10, 2006 made by K. Garibova whose
interests were infringed by this judgment of appeal instance it is specified
that she got the disputed apartment on July 19, 2005 on legal grounds under the
contract on purchase and sale certified by SN No. 12 of Baku city at her owner
Tarana Nuraliyeva for 282.000.000 manats, and on August 26, 2005 on her name
the registration certificate No. 245863 on this apartment was issued.
Due to the temporary residence in the region she did not
know concerning court sessions, appeal complaint made in 4 years, the adopted
judicial acts and close people informed her about her eviction from given
apartment and moving in there of some other party.
Further in the complaint it is said that the apartment
was acquired at the person with the right of housing property, according to the
law the corresponding references (form 1, 2) are received, the apartment was
free, without arrest imposed, and was not encumbered in any form. Therefore,
she could not assume existence of any related dispute.
K. Garibova, having specified that she did not allow
any illegal actions or inaction, asked to cancel a judgment of appeal instance
owing to illegality of deprivation her as bona fide purchaser of property and
to direct case to the same instance for reconsideration.
By ruling of the judge of the Supreme Court as of May
11, 2006 it is specified that she is not among the persons having rights of
submission of the appeal for the decisions which entered into force and rulings
of court of appeal instance (Article 403 of the CPC) therefore the appeal was not
accepted to procedure.
By the ruling of JBCC of the Court of Appeal of June
23, 2006, it was also made a reference to absence of the relevant documents
confirming that K. Garibova is among the persons having the right of submission
of the appeal and the appeal is returned back.
The Chairman of the Supreme Court of the Republic of Azerbaijan,
being guided by Article 403.2 of the CPC, on the basis of K. Garibova's address
on July 5, 2006 brought in JBCC of the
Supreme Court the representation on this decision. In representation it is
specified that though K. Garibova, getting the disputed apartment on legal
grounds, registered it on own, that the judgment of appeal instance infringes her
interests, nevertheless, was not attracted to participation in case in quality
of the 3rdperson, and specifying other circumstances, asks to cancel
the decision and to direct case to the same court for reconsideration in an
appeal order.
By the ruling of the judge of court of cassation
instance of July 6, 2006 the court session connected with representation was
appointed on August 16, 2006.
The JBCC of the Supreme Court by its decision of
August 16, 2006wasnot satisfied representation and uphold the decision of JBCC
of the Court of Appeal of December 12, 2005.The decision is proved by that
other above claim of A. Guseynova concerning disputed apartment was satisfied
with the decision adopted by Yasamal district court on July 19, 2006 because
the contract of purchase and sale signed between T. Nureyeva and K. Garibova
concerning disputed apartment, and the registration certificate are recognized
invalid, the last lost the housing rights for this apartment. Therefore, she
cannot act as the interested person in the dispute connected with this apartment.
From the decision of Yasamal district court of July 19, 2006 it becomes clear
that, according to the contract concluded in SN No. 5 of the Baku city, the disputed
apartment was sold on September 12, 2001 to F. Aliyeva by S. Tagiyeva. After
that, this apartment five more times was a subject of the notarized contracts
on purchase and sale signed between various persons and as the object of
property belonging to them and registered by registration certificates. The
last such contract was signed and notarized on July 19, 2005 between T.
Nureyeva and K. Garibova, and on August 26, 2005 the relevant registration
certificate was issued.
It is also necessary to note that in the decision of
Yasamal district court as of July 19, 2006 it is specified that the decision of
JBCC of the Court of Appeal as of December 12, 2005 (before consideration on merits
of the representation given on it to cassation instance) entered into force,
thus a reference to Articles 337.4 and 337.5 of the CC (invalidity of contracts
and its consequence, the rules concerning disputed and insignificant contracts)
is made. Thus, in the act of this court the decision of JBCC of the Court of
Appeal as of December 12, 2005, and in the decision of JBCC of the Supreme
Court as of August 16, 2006 – the decision of Yasamal district court as of July
19, 2006 that led to direct recognition of the instance by court and indirect
recognition by court of cassation instance of legality and validity of a
judgment of appeal instance is taken as a basis.
In connection with the complaint Plenum of the
Constitutional court of the Republic of Azerbaijan considers necessary to note
the following.
According to Constitution of the Republic of Azerbaijan
the property right is among the recognized and protected rights (Article 13.1,
parts I, II, III of Article 29 of the Constitution). A guarantee of this right
as one of the inalienable and indivisible basic rights and freedoms of the
person, creation of opportunity for participants of the civil relations to
carry out it in the conditions of equality, independence of property according
to the principles of inviolability of property, a free will provides, and in
case of violation – its protection in court.
At the same time, such protection, without being
limited only to the owner, covers the sphere of influence the rights of other
participants of a civil turn (owners, users of the disputed property) also
existing on legal grounds.
The equalities of subjects of civil law, free will
following from the constitutional norms, and also restoration of the violated
rights and legal protection of the civil rights are defined as the basic
principles also in the provisions of Civil Code (Article 6 of the CC)
developing them. The essence and the content of these principles provide such
balanced and correlative protection of other real rights, along with the
property right that according to the principle of justice the rights and
legitimate interests the owner, neither the parties of the contract, nor the
third parties did not suffer.
Some legislative norms, along with recognition of
property rights of members of the family of the owner, provided also the
protection mechanisms directed on prevention of their violation. Thus,
according to Article 32 of the Family code of the Republic of Azerbaijan (hereinafter
referred to as the Family code), the property acquired by spouses during
marriage, including real estate considered as the general joint property.
For the conclusion by one of spouses of the contracts notarized
and (or) registered by real estate office a notarized consent of other party is
needed (Article 33.4 of this Code). The provision of the similar contents found
reflection also in the Article 46.2 of the Law of the Republic of Azerbaijan “On
Notary”.
However, the legislator, not excepting possibilities
of non-compliance with the specified requirement at the conclusion of such contract
and violation thus of the rights and legitimate interests of one of joint
owners, for recognition its invalid also established contest within the provided
term.
According to Article 33.4 of the Family Code, in case
of absence of notarized consent of one of spouses on it other has the right
during 1 year after learning or having an opportunity to learn about
implementation of the contract, to demand recognition of this transaction
invalid.
It is indicated in the CC that property obtained by
spouses during marriage is their joint property (if marriage contract or
agreement reached between them does not specify other order. The CC also
provides for one year for recognition of transaction invalid and application of
consequences of its invalidity (connected also with contracts concluded without
consent of one of spouses); this period is calculated starting from dated when
circumstances giving grounds for recognition of relevant contract invalid
became clear or could become clear (the Articles 225.1 and 354.2 of the CC).
From documents of the case it is also clear that at
the sale of registered on K. Guseynov as his property, F. Aliyeva's apartment
there was a consent signed by A. Guseynova and notarized on October 17, 2000.
In spite of the fact that delivery of such consent was reflected also in the
decision of Yasamal district court as of August 31, 2001 and recognition of
this consent by A. Guseynova in the minutes of court session, in the made
appeal complaint the contract is disputed with promotion of the requirement
against the claimant about recognition its invalid after term 1 year (4 years
later) which is denied by it and is provided by the above laws, and application
of its consequences. According to the Article 375.2 of the CC, the term of the
claim is applied by court only on the basis of the application submitted by the
challenging party before pronouncement of the judgment. The expiration of the
claim for its application submitted by the challenging party forms the basis
for pronouncement by court of the decision on refusal in the claim. However, in
spite of the fact that A. Guseynova reported in the appeal complaint about F.
Aliyeva's alienation of the disputed apartment on September 10, 2001, and also
the actual promotion against it and living at that moment in the disputed
apartment of persons of the claim requirement, nevertheless, the court of
appeal instance did not provide participation in case according to requirements
of procedural rules F. Aliyeva, the person (K. Garibova) who bought this
apartment, and solved dispute in essence in their absence. Such situation does not
correspond to the general rules established by CPC connected with justice implementation.
According to this Code, justice is carried out on the
basis of a lawsuit, equality of the parties and the facts. If this Code did not
provide other case, dispute in court cannot be considered without examination
of the persons participating in case. In all cases the judge has to provide the
principle of a lawsuit of process. It has to prove the decision only the
arguments discussed by the parties on the basis of the principle of a lawsuit,
their explanations, documents. On the other hand, for achievement of truth the
court has to create necessary conditions for comprehensive, full and objective
trial of case, explain for this purpose to the persons participating in case
their procedural laws and duties, to warn them about consequences of the taken
or not taken actions, to render assistance to implementation of their
procedural laws (Articles 9, 14.1 of the CPC). In this sense not involvement of
the claimant, and also interested person to matter (process) in court of appeal
instance not only resulted in senselessness of procedural rules, but also
deprived of their realization of the legal opportunities provided in connection
with use of term to the claim requirement submitted directly for consideration
of appeal instance by court in connection with recognition of the transaction
invalid and application of its consequences.
At the same time, though A. Guseynova in the statement
connects the expiration of submission of the appeal complaint with her own and
husband’s illness and moving to another location, noting that the copy of a judgment of the first
instance was not sent to them (the first application was submitted on April 7,
2004, that is actually 2 years and 7 months later), nevertheless, as appears
from case papers, the copy of this decision was directed) by court to K.
Guseynov and A. Guseynova, and its receiving is confirmed with the receipt. In
spite of the fact that in her appeal of August 2, 2004 it is reported that they
personally received the copy of this decision on August 23, 2002, nevertheless,
from ruling of court of appeal instance of February 9, 2005 on the case
considered on the basis of the decision of court of cassation instance in
connection with this complaint it becomes clear that this fact is denied by her.
In
the decision of Plenum of the Constitutional court of February 13, 2007 in
connection with Ch. Ismailzade's complaint it is noted that “the judicial act
that entered into force finalizes the existence or lack of the disputed fact of
the substantive law or based on this right and on request of the authorized
person without any conditions obliges their implementation. For this reason,
after use of all ways of protection provided in the procedural legislation, the
judicial act that entered into force possesses such legal signs as an
irrefutability, exclusiveness and obligation”.
At the same
time, it is not excluded that the judgment of the first instance enters into
force because of the expiration of submission of the complaint by the
interested person for good reasons.
After the term established by the law according to
Article 130.1 of the CPC or imposed by court, the right of implementation of
procedural actions is complete.
Following petition of a
person participating in case, court, further to the acknowledgement of reasons
for missing any periods specified by the law as valid, have the right to
restore a procedural period (Article 133.1 of the CPC).
It should be noted that for restoration of the
procedural term provided by the law only such reasons which existence does not
depend on will of the person having procedural laws and duties which go beyond
opportunities of their independent overcoming can be considered as the valid
disturb or limit performance of the corresponding action. Recognition of the
reason that entailed the expiration valid depends directly on opinion of court.
In this context, respectfulness has to be accepted concerning such
incontestable reasons standing on border of the specified criteria when the
judicial act that is taken out in connection with the matter with observance of
requirements of the CPC does not raise doubts. According to the above Plenum of
the Constitutional court considers that though the judicial act which is taken
out in connection with allowance of the application of A. Guseynova, the
procedural term connected with restoration externally (formally) makes
impression of compliance, nevertheless, it cannot be considered as the
answering contents and purpose of Article 133 of the CPC because of discrepancy
to the above criteria from the point of view of the analysis of the documents
containing in a civil case.
Though in the complaint it is reported on alienation
of the disputed apartment, nevertheless, court of appeal instance, considering
it in essence, did not understand to whom and on what legal ground at that
moment the disputed apartment was belonging, satisfied the appeal complaint of
the buyer, without involving him in case, and adopted the decision.
It should be noted that the dispute following from the
legal relations which are a subject of judicial proceedings can be solved in
such a way that thus participants of the related other material legal relations
faced influence on their subjective right and legitimate interests. A number of
processes of law for elimination of influences of the negative contents
provided in this context as in the procedural and material legislation.
Thus, in Articles 55 and 57 of the CPC the norms
concerning the third parties who are making and not making independent demands
for a dispute subject are established. According to Article 57.1 of this Code,
the third parties not making independent claims
under the subject matter of dispute have the right to enter into process on the
side of claimant or respondent prior to decision of court of first instance. According
to Article 387.2.4 where court has resolved
matter relating to rights and obligations of parties not involved in case
proceeding resulting in violation of their rights
The case is the ground providing cancellation in court
of cassation instance of decisions and ruling of court of appeal instance (Article
418.6 of the CPC).
Besides, according to Articles 403.2 and 423 of the
CPC, the chairman of the Supreme Court on the basis of application of persons not involved in case whose interests are touched
upon by court act, can give representation respectively to JBCC of the
Supreme Court or Plenum of the Supreme Court.
As evident from case materials, in court of appeal
instance K. Garibova was not involved as the interested person, the
representation given on the basis of her application by the Chairman of JBCC of
the Supreme Court also was not satisfied. The legal status created by the
solution of dispute in essence with ignoring of procedural rules actually led
to opposition and collision (rivalry of claims) of means of protection of the
civil rights of CC of various applications.
Along with lack of restrictions in a choice of means
of protection with provisions of CC of the violated rights of the person at own
discretion, use of the general means of civil protection was not given to
dependence on existence of means of protection of the private or real law.
Thus, civil rights are protected
in accordance with the procedure specified by legislation law in a manner,
which does not violate the law, public order and morals (Article
18 of the CC).
In this context the persons assuming violation of the
real rights, for their protection can appeal to court with claim for
recognition of corresponding contract as invalid and application of its
consequences – restitution (Article 337-354 of the CC) or return of property
from illicit possession of other person – vindication (Article 157 of the CC).
However, it should be noted that these means protection,
being non-uniform, different from point of view of legal nature and purpose.
Thus, according to the Article 157.2 of the CC, owners
are entitled to claim their property from
another’s illegal possession. According to the Article 157.3 of this Code (this
article was in force on August 26, 2005 - when according to the Purchase &
Sale Contract between T. Nuraliyeva and K. Garibova dated July 19, 2005 in
connection with the disputed apartment of the latter the registration
certificate on this apartment was issued - and on November 1, 2005 became
invalid) in case of paid acquisition of property from person who does not have
right for its alienation, and acquirer does not know about it or can not know
(the bona fide owner), an owner can demand this property from acquirer only in
case if it is lost by an owner or a person to whom by an owner it is
transferred to possession, or is stolen from one of them, or left their
possession other way, independent of their will.
At gratuitous receiving property by a person who does not
have right for its alienation, the owner is entitled to demand it in all cases.
Money as well as anonymous securities cannot be required back from bona fide
purchaser.
According to content of the norm which was in force during
this period, only existence of the fact of paid acquisition of property, lack
of termination of power over it of the owner or owner for the above reasons,
ignorance of the recipient about acquisition of property at the person who does
not have the right for its alienation provides for the bona fide owner a legal
position, more preferable in relation to the owner, from the point of view of
possibility of providing the requirement.
It is also necessary to note that in case of a claim
of the third parties connected with this property until the conclusion of the
paid transaction in connection with the disputed property will become known to
such person, subsequently if these claims in the appropriate order are not
recognized contradicting the right, it is not accepted as the bona fide
purchaser.
One of means of protection of the real rights consists
in recognition of the transaction concluded on disputed property as invalid and
application of its consequences. According to Article 337.1 of the CC, the transaction
concluded with violation of the conditions established by this Code is
considered as invalid.
According to Article 337.4 of this Code, the invalid
transaction does not result in legal
consequences except for consequences relating to its invalidity. Such agreement
shall be invalid from moment of its conclusion. Each party, in the event of invalidity of
agreement, and where other consequences of its invalidity have not been
stipulated in this Code, be obligated to return to the other party all items
received pursuant to agreement, and in the event of impossibility of return of
the same received items (including where received items have been expressed in
the use of property, performed work or rendered service), be obligated to
compensate for its value in money (Article 337.5 of the CC).
From the analysis of the specified articles follows
conclusion that in the presence in Article 157.3 of the CC of necessary
conditions, in case of acquisition of property at the person who does not have
the right for its alienation the legislator, recognizing a presumption
receiving as bona fide owner, established impossibility of vindication. Similar
approach is caused not by the actual legal status of property, it follows from
the purpose of ensuring protection of the real rights getting (bona fide owner)
connected with this property with recognition of this right. In case if there
are no direct or indirect participation of the owner in transition of property
to the third party and the emergence basis at receiving (the bona fide owner)
the rights connected with property does not lean in touch, generated by the transaction
concluded by him with the owner, the guarantee introducing restriction on
return to his owner excludes overcoming it the claim connected with recognition
of the transaction as invalid. On the other hand, if the restitution provides
transfer of property, connected with the transaction recognized invalid, to its
participant (party), vindication establishes return of the property that is in
illicit possession, other person, to the third party – to the owner who is not
connected with such person.
In this context application of the rules connected
with recognition of the transaction as invalid without requirements of Article
157.3 of the CC, nullifying legal purpose and value of a factor of integrity,
would create opportunity for the owner, using this security measure without
restriction, to demand recognition invalid not only the first transaction, but
also all contracts and returns of property concluded subsequently in nature
(including from the bona fide owner).
Such legal uncertainty when the contract concluded by
the bona fide owner with a good intention, reasonable care and vigilance can be
called into question by other security measure, and its consequences are
applied when he actually remains without protection face to face with the
owner, being negatively reflected in stability of a civil turn, stability of
the relations arising in connection with property would lead also to
undermining trust of the parties to each other.
In the decision of Court of Appeal the preference is
given to such position with denial of rules connected with bona fide
possession; therefore property right of K. Garibov to the disputed apartment
lost value. This circumstance cannot be considered acceptable from the point of
view of Article 13,1, parts I, II and III of Article 29 of the Constitution of
the Republic of Azerbaijan.
Plenum of the Constitutional Court of the Republic of
Azerbaijan also notes that, according to the Article 416 of the CPC, court of cassation instance verify correct
application by court of appellate instance of material and procedural norms of
law. According to Article 417 of this Code, the court of cassation instance
is also authorized to cancel in whole or in part the decision and ruling of
court of appeal instance and to direct case to court of appeal instance for
reconsideration. Where court has issued decision
or ruling relating to rights and obligations of parties not involved in case
proceeding resulting in violation of their rights (Article
418.4.6 of the CPC).
According to the Article 60 of the Constitution, the legal protection of rights and liberties of
every citizen is ensured. The contents of the Articles 125 and 127 of
the Constitution demand implementation of this guarantee within impartial, fair
judicial proceedings with observance of equality of the parties on the basis of
the facts and according to the law, including in the limits of the
corresponding legal proceedings set by the law. However, JBCC of the Supreme
Court, considering case on the given representation, not only verify the fact
of the correct application by court of appeal instance of norms of a
substantive and procedural law, on the contrary, being guided by the judgment
of the first instance which did not enter into force, adopted the decision of
August 16, 2006 that contradicts to Article 60 of the Constitution guaranteeing
to everyone legal protection of the rights and freedoms.
Thus, Plenum of the Constitutional court comes to a
conclusion that because of discrepancy of decision of JBCC of the Supreme Court
of the Republic of Azerbaijan of August 16, 2006 on a civil case concerning
claim requirement of F. Aliyeva against K. Guseynov about eviction from the
apartment and to loss of the right for living space with the Article 13.1,
parts I, II, III of Article 29, Article 60.1 of the Constitution of the
Republic of Azerbaijan and Articles 416, 417 and 418.4.6 of the CPC it is
necessary to consider it as null and void, the this civil case needs to be
reconsidered in an order and the terms provided by CPC with observance of the legal
position containing in this decision.
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:
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.
