On invalidation of some decisions of Plenum of the Supreme Court of the Republic of Azerbaijan and making additions and amendments to some decisions

On invalidation of some decisions of Plenum of the Supreme Court of the Republic of Azerbaijan and making additions and amendments to some decisions

of “Plenum of the Supreme Court of the Republic of Azerbaijan

to consider some of their decisions as invalid and to some of their decisions

On making additions and amendments ”

Of “Plenum of the Supreme Court of the Republic of Azerbaijan

RESOLUTION

“20” February 2020                           No                                         Baku city

In order to ensure predictability of legal position related to stability of the approach of courts to the solution of legal issues and application of regulatory acts along with a number of other important issues set forth in Decree No. 604 of the President of the Republic of Azerbaijan "On Deepening Reforms in the Judicial-Legal System" dated April 03, 2019, it was recommended to the Supreme Court of the Republic of Azerbaijan to strengthen the activities in the field of studying and generalization of judicial practice, to take serious measures to form a single court practice, as well as to create the appropriate mechanism to eliminate systemic defects as a result of generalization. 

Due to the introduction of a new stage of judicial and legal system reforms in the past, laws envisaging significant amendments and additions to the Law of the Republic of Azerbaijan “On Courts and Judges”, Civil Procedure, Administrative Procedure, Criminal Procedure Codes and a number of other laws were adopted, as well as important decrees and orders were issued by the head of state, a lot of works were carried out in the practical field.

With the changes in the legislation, legal significance of decisions of the Plenum of the Supreme Court regarding the interpretation of judicial practice has been increased. The task of ensuring more effective implementation of the single judicial practice by the Supreme Court, as well as the improvement of law enforcement practices, is to improve the decisions of Plenum on judicial practice as a permanent task. Moreover, changes in legislation and judicial practice over the past period also led to lose the practical relevance of the explanations in several decisions made by the Plenum of the Supreme Court. Therefore, some decisions of the Plenum of the Supreme Court should be considered as invalid, and appropriate amendements and additons should be made to some decisions. 

Based on the mentioned issues and following Articles 79 and 80 of the Law of the Republic of Azerbaijan "On Courts and Judges", Plenum of the Supreme Court of the Republic of Azerbaijan

DECIDE:

I.The following decisions of the Plenum of the Supreme Court of the Republic of Azerbaijan shall be considered as invalid:

1. Decision of November 12, 1991 "On measures or improving of the consideration of applications and complaints of citizens for proceedings'";

2. Decision of October 16, 1992 "On the Practice of Housing Legislation Implementation by the Republican Courts";

3. Decision of May 03, 1993 "On the judicial practice of the application of labor legislation regulating the amendment and termination of employment contracts";

4. Decision of December 12, 2002 "On approval of the Code of Ethics of Judges of the Republic of Azerbaijan";

5. Decision No. 2 of February 14, 2003 "On Some Issues of the Practice of the Application of Land Legislation by the Courts";

6. Decision No. 3 of 25 March 2003 “On Some Issues of the Practice of the Application of Legislation by the Courts in the Proceedings of the Entrepreneurship”;

7. Decision of November 27, 2003 "On Some Issues of Practice of Application of Tax Legislation by Economic Courts"

II.To make following amendments and additions to the decision of the Plenum of the Supreme Court of the Republic of Azerbaijan dated January 14, 2003 No. 01 "On Some Issues of Court Practice in Issuance and Execution of Execution Files":

1. to exclude Paragraphs 8-11 from the preamble of the decision;

2. to exclude the third paragraph in Article 1.

3. to exclude from the paragraph 5 of Article 1 the words "in accordance with Article 417.0.2 of Civil Procedure Code of the Republic of Azerbaijan";

4. to add the words "suspension of proceedings for execution and temporary restriction of the debtor's right to leave the country" after the words "amendment" in Article 3;

5. Article 4 shall be stated as follows:

"Explain to the courts that the scope of resolutions to be immediately enforced is clearly set out in Article 234.2 of the CPC, and that the broad interpretation and application of that article is not admissable."

    III.To make the following additions and amendments to the decision of Plenum No 3 of the Supreme Court of the Republic of Azerbaijan dated November 24, 2005 "On the practice of applying the legislation to challenge the judge (composition of the court)"":

1. To add the words “commercial, administrative” after the word “civil” in Article 1.

2. To add the word “Code of Administrative Procedure” after the word  “Code of Civil Procedure” in Article 2.1.

3. Article 2.3 shall be stated as follows:

"Existence of cases which are envisaged by the law, which is not allowed by the judge to consider, is the basis for challenging it or self-challenge by the judge."

4. to add words “as well as participants of administrative proceedings, which`s  scope is defined in Article 27 of the Code of Civil Procedure of the Republic of Azerbaijan” after the word “participant” in Article 2.4.

5. to add "participants of administrative proceedings" after the words "persons participating in the case" In Article 3.1.

6. to add the words “the participant of administrative proceedings” after the words “person participating in the case”, to add “18-19th of Code of Administrative Procedure” after the words “19th of Code of Civil Procedure” in Article 4.1.

7. to exclude, the words "in the consultation room" in Article 5.4.

8. Article 8 shall be amended by adding the third sentence with the following content:

"Exceptions for the judge's involvement in the proceedings should be resolved in accordance with Article 18 of the CAP", citing the existence of kinship relations in the administrative proceeding".

9. Article 9.1 shall be amended by adding the second and third sentences with the following content:

“In administrative proceedings, a petition for objection may be filed in writing and orally in the course of the hearing in accordance with Articles 19.2 and 19.3 of the CAP, and the petition must state the grounds for the objection." In addition, a petition for objection may be filed immediately after the grounds for the protest are known to the process participant and if this is not immediately possible due to an excuse, it can be issued within 3 days."

10. To replace the words “it can be fined up to 200 times and 100 times of a conditional financial unit in criminal proceedings and civil proceedings  ” by the words “can be fined in the amount stipulated by the relevant legislation" in Article 9.2.

11. To exclude Articles 10 and 13.

IV.To make the following additions and amendments to the decision of Plenum of the Supreme Court of the Republic of Azerbaijan dated November 24, 2005 No. 04: "On the resolution of the court":

to replace the words  "economic disputes" by the words "commercial disputes" in Article 1;

2. The first sentence of Article 4 shall be given in the following wording:

"According to Article 82.4 of the Criminal Procedure Code of the Republic of Azerbaijan, the court order, as well as other court orders of criminal prosecution which came into legal force are binding for whether or not the case is for the court and the person`s involvement part in the case in the court in case of a civil case or a commercial dispute".

3. Article 6.13 shall be amended as follows:

"The court decision must be drawn up in the manner and within the time period prescribed by Article 227 of the CPC, should be submitted to the persons present in the case officially and posted in the electronic cabinet."

4. to replace the words "Article 235 of CPC" by the words "Article 234.2 of CPC in Article 11.2, to exclude the second sentence of that Article;

5. to replace the words “judge can resolve the issue of turning the resolution into execution in accordance with Article 235.3 of CPC of the Republic of Azerbaijan" by the words “the court must resolve the issue of the execution of the resolution if it is necessary” in Article 11.3.

6. Article 16.3 should be added as follows:

“Courts also must consider comments in Decision in “on the interpretation of Article 82.3 of the Civil Procedure Code of the Republic of Azerbaijan by Plenum of the Constitutional Court of the Republic of Azerbaijan in regard of prejudice matters” dated 23 February, 2016 and the Decision on “On the interpretation of Article 142 of the Criminal Procedure Code of the Republic of Azerbaijan” dated 08 January, 2020.

 V.The following amendments and additions to the Resolution of the Plenum of the Supreme Court dated March 30, 2006, No. 05 “On the application of the provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights during implementation of justice judgement:

1. to add "or administrative" after the word "civil" in 2 and 4 paragraphs in Article 6.

2. to add "78th of APC" after "82th of CPC" in Article 10.

3. to add a new sentence with the following content at the end of Article 10:

 “Courts also must consider comments in Decision in “on the interpretation of Article 82.3 of the Civil Procedure Code of the Republic of Azerbaijan by Plenum of the Constitutional Court of the Republic of Azerbaijan in regard of prejudice matters” dated 23 February, 2016 and the Decision on “On the interpretation of Article 142 of the Criminal Procedure Code of the Republic of Azerbaijan” dated 08 January, 2020.

4. to exclude the words "or public needs" in Article 23.

VI.To make the following additions and amendments to the Resolution of the Plenum of the Supreme Court of the Republic of Azerbaijan dated November 03, 2008 No. 07 "On the practice of application of the legislation by courts on compensation of pecuniary damage":

1. to replace words "" because of the claim for compensation of pecuniary damage in civil cases is of a property nature, this" by the words "compensation of pecuniary damage" in Article 12.

2. To eclude the second sentence of Article 13.

VII.To make the following additions and amendments to the Resolution of the Plenum of the Supreme Court of the Republic of Azerbaijan dated March 31, 2011, No 03, ""On practice of the  application of legislation by courts on non-consideration of appeals":

1. to exclude the words "“special claim proceeding” in Article1.3.

2. to exclude the words "“according to Article 308 of the CPC of the Azerbaijan Republic, the court may determine the facts of legal importance when the applicant may not otherwise obtain the necessary evidence confirming those facts, or it is impossible to recover the lost documents;  to replace the words "“economic disputes" and "economic" by the words "commercial disputes" and "commercial" accordingly in Article 4.1.

3.  to add the second sentence to Article 5.1 with the following content:

"It should be taken into account that that under Article 49 of CPC of the Republic of Azerbaijan, the rights, freedoms and legally protected interests of children, as well as persons with limited ability or inability are protected by their legal representatives in court."

4. to add the words “A document or a order of lawyer confirming that the representative is a close relative of the individual involved in the case, an employee of the legal entity” after the word "power of attorney" in the first sentence of Article 6.2.

5. to replace the words " to protect" and "doesn`t do” by the words "in the case of a written defense" and “does” in Article 6.3.

6. to exclude Article 7.2.

7.  to replace the words "by signing the protocol" by the words "by doing appropriate registration in this regard in the protocol” in third sentence of Article 9.1.

8. to replace the words “refusal to accept" by the words "return" in Article 10.

9. to exclude the word "with the grounds" in Article 11.

10. to exclude Article 12.

11. Article 14 should be given in the following content:

“If the application is not considered, the judicial review is completed by a decision. Keeping the application unconsidered with resolution is inadmissible. In the decision, the impossibility of considering of the case at the merits in the current situation should be justified by referring to specific provisions of the law. ”

12. to exclude Article 18.

13. Article 19 should be given in the following content:

State complaints may be required for appeals by those persons from the decision to keep the claim pending, and complaints cannot be returned on this basis for exemption from payment of state duty by persons participating in the case on appeals from court rulings in accordance with Article 9.1.17 of the Law of the Republic of Azerbaijan “On State Duty”.

14. Item 20 shall be considered as Item 21 accordingly, new Article 20 shall be added as follows:

According to Article 391 of the Code of Civil Procedure of the Republic of Azerbaijan, if there are grounds specified in Chapters 19 and 20 of this Code, the decision of the court must be reversed by terminating the proceedings or keeping the application without consideration. When considering cases in the court of appeals, it must be taken into account that all the grounds listed in Article 259 of the CPC cannot be the basis for the cancellation of the decision at that stage or keeping the claim pending. During the appeal proceedings, such decisions of the first instance court may reversed on the grounds referred to Article 259 of the CPC provided that notwithstanding the cases mentioned in the present Article, the court of first instance violates procedural law by accepting the case or considering the case.  In this regard, if there are grounds specified only in Articles 259.0.1-259.0.4 and 259.0.8.-259.0.10 of the CPC by the courts of appeal, the application may be kept pending in whole or in part by reversal of court decision fully or partly. Other grounds referred to in Article 259 of the CPC cannot be the basis for the cancellation of the court decision by keeping the claim pending by the court of appeal. ”

VIII.The following changes will be made to the Decision of the Plenum of the Supreme Court of the Republic of Azerbaijan dated October 28, 2011, No. 6/2011 "On the practice of application of the legislation concerning the rights of parents and other relatives to communicate with children by courts":

1. To add the first paragraph of Articles 1 and 4 and the second paragraph of Article 10 with the following content:

"The court may also consider and take into account the opinion of a child who has reached the age of seven when making a decision."

2. Add new paragraph to Article 2 in the following content:

“Explain to the courts that it is possible to take measures to consider a claim under Article 158.1.2 and 158.1.3 of the Civil Procedure Code in order to prevent the cooling of relations between child and parent who filed a communication claim, disconnecting communications to the extent it will make the implementation of the resolution impossible in the future during the period prior to the final hearing of the claims of communication with the child. It should be assessed whether there are explicit cases involving a parent who requires the right to communication, which may conflict with the interests of the child while considering application on claim on prohibition of impediments for communication to the minimum extent for respondent by plaintiff,  determined with the court before the dispute is resolved ”

3. Last sentence of Article 4 shall be given in the following content:

"Failure to consider appeals of grandfather, grandmother, brother, sister and other relatives on the implementation of the right to communicate with children within the period prescribed by law by the relevant executive authority (trusteeship and guardianship bodies of local executive authorities) or to refuse to provide that appeal is not the basis for appealing against the decision, activity or non-activity of that body, but for the purpose of filing a lawsuit to determine the rules of communication with the child. ” 

IX.To make the following additions and amendments to the Resolution of Plenum of the Supreme Court of the Republic of Azerbaijan dated April 10, 2015, No. 04 "On judicial jurisdiction of disputes arising from administrative and civil law relations":

1. To replace the words  "administrative-economic courts and administrative-economic collegiums" by the words  "administrative courts and administrative collegiums" accordingly in paragraph 9 of the preamble of the decision.

2. To replace the numbers “XV, XVI, XVII and XVIIII” by the numbers “XV-XIX” accordingly in Article 1.

3. Paragraph 7.2 shall be stated as follows:

7.2. It should be considered that, in accordance with Articles 3.2, 3.2.1 and 3.2.2 of the Law on Administrative Proceedings, this law does not apply to  criminal-procedure activity on criminal prosecution and activities on administrative offenses. Therefore, lawsuits related to administrative offenses, as well as claims for compensation of damages inflicted by illegal investigations, preliminary interrogation and  prosecutions are subject to civil legal proceedings. Because, in the above cases, the relationship between the parties resulting in damages is not the result of administrative proceedings. In such cases, the decisive criterion for determining the relevance of the court is the extent to which the alleged harm is inflicted. According to Article 1.1 of the Administrative Procedure Code of the Republic of Azerbaijan, disputes arising from administrative legal relations in the course of administrative proceedings can be considered. Accordingly, claims filed by concerned persons against administrative authorities for damages may be considered in the administrative procedure if such damage has been inflicted as a result of the activities of administrative bodies in the field of administrative law. ”

4. to exclude the words "administrative-economic in the manner of judicial proceedings" from Articles and 11 and 12.

5. to replace the words “administrative and economic courts” by the words “commercial courts” in Article 13.

6. to replace the words "administrative proceedings" by the words "administrative legal proceedings", to exclude "by administrative and economic courts" in Article14.

7. to replace the words "administrative and economic" by the words "administrative" in Article 15.2.

8. to replace the words "to a general court"  and "of general court" by the words "and to a general or commercial court" and "of a general or commercial court" accordingly,  to replace the words "in a general court"  by the words "in a general or commercial court" in both cases In the second sentence of Article15.4.

9. Article 16.1 shall be stated as follows:

“16.1. For administrative disputes are different from civil disputes (commercial disputes), civil claims (commercial disputes) cannot be combined and considered together with claims filed in administrative proceedings, and administrative claims cannot be combined and considered together with civil proceedings. "

10. to replace the words "administrative and economic" by the words "administrative", to exclude “in the manner of administrative proceedings” in Article16.2.

11. to replace the words "in the manner of civil proceedings to general or administrative-economic court" by the words "to general or commercial court" in Article 16.3.

12. to replace the words "economic" by the words "on commercial disputes" in Article 16.4.

13. Article 17 should be given in the following content: 

“While determining the legal relevance of disputes arising from the registry in the State Register of Real Property, the exclusion from the State Register of Real Estate it should be taken into account that extract from the State Register of Real Estate is a document that reflects registration in the registry and cannot be regarded as an administrative act. The settlement of judical relevance issue of such disputes depends on the legal nature of the claim, whether it is a civil-legal or administrative-legal claim. While determining the legal nature of the claims, the essence of the dispute must be analyzed and the legal acts that constitutes the basis for the registration in the State Register of Real Estate and (or) and actions of the administrative body should be evaluated.

If registration is based on civil law transactions (sale, donation, inheritance certificate, etc.), then the registration of real property in the State Register should be carried out with disputable legal documents that constitute the basis for its conduct and should be considered in civil proceedings.

If registration in the register is made on the basis of an administrative act and the actual basis of the claim is the illegality of this act, the claimers must first dispute this administrative act by filing a lawsuit against the body that has taken the relevant act in accordance with their legal interest. If such a claim is successful, then it may be required to change the registry by appealing to the registering authority and, in the event of dissatisfaction with the action of the registration authority, it can be appealed to the administrative court.

Depending on the circumstances of the particular dispute, sometimes both the administrative act and the civil law deal create a joint legal basis for the registration in the register. In such cases, taking into account the legal interests of the claimant and the legal nature of the claims, dispute of an administrative act shall be considered in administrative proceedings, but the dispute of a civil-law transaction shall be considered in the civil proceeding.

If registration in a register is not based on any civil-legal or administrative deal, this is the result of the actual activity carried out within the limits of execution of powers arising from common (public) law of the administrative authority. In order to assess whether the duties and powers of the administrative body resulting from public law are evaluated legally and reasonably during the disputing of such registration, such disputes must be considered in the administrative proceedings.

Although the registration in the State Register of Real Property is based on a civil-legal transaction or administrative act, the case should be considered by the administrative courts, even when the plaintiff didn`t dispute those law determining documents but their registration which was not properly conducted by the administrative authority. "                        

X.The following amendments and additions will be done to the Resolution of the Plenum of the Supreme Court of the Republic of Azerbaijan dated March 28, 2016, No 8-2 / 2016  "on the practice of application of the legislation by the courts while considering cases involving marriage breakdowns, remaining of children with which parent after divorce and taking alimony from parents”:

1. New paragraph will be added to Article 7.1 in following content:

“Explain to the courts that it is possible to take measures to consider a claim under Article 158.1.2 and 158.1.3 of the Civil Procedure Code in order to prevent the cooling of relations between child and parent who filed a claim for child, disconnecting communications to the extent it will make the implementation of the resolution impossible in the future during the period prior to the final hearing of the claims on with which parent the child will remain. It should be assessed whether there are explicit cases involving a parent who claims the child, which may conflict with the interests of the child while considering application on claim on prohibition of impediments for communication to the minimum extent for party keeping child temporarily by other party,  determined with the court before the dispute is resolved ”

2. The following paragraph shall be added at the end of Article 7.4:  

"The court may also consider and take into account the opinion of a child who has reached the age of seven when making a decision."

3. Article 7.5 shall be stated as follows:

“Explain to the courts that while hearing to the child's opinion about remaining with which parent, expressions "“the opinion of a child 10 years of age must be taken into account” or "the opinion of a child who has reached the age of 7 can be asked and taken into account when making a decision" specified in Article 52 of the Family Code of the Republic of Azerbaijan are not the only basis for the giving of the child from one parent to another. The court must, in any case, assess the child's opinion as a whole, and resolve the dispute, taking into account the best interests of the child. "

4. New paragraph will be added to Article 7.6 with the following content:   

“Explain to the courts that while the court considering the case with whom the child will remain, the issue on taking of child from other parent and giving to the parent determined by the court as the parent with whom child remain will during the period when the child is not with the parent, as well as, from the point of view of the child's interest, the order and timing of execution in the final part of the resolution in accordance with Article 220.6 of the Code of Civil Procedure ” should be specified in the case of weaking of relations, cooling of relationships to that extent that degree which in the future will make it difficult to enforce the resolution as the result of  the lack of communication between the parent and the child for a long time.     

 5. Third sentence will be added to Article 8.11 with the following content:

“Explain to the courts that the alimony decisions must be enforced immediately according to Article 234.2.1 of the Civil Procedure Code of the Republic of Azerbaijan. Reversal of the alimony decision by the higher courts, rejection of the alimony claim, or reduction of the amount of alimony does not constitute grounds (not to cause) for refund of the amount of alimony paid until a judicial act providing that amendment comes into force. ”

6. to exclude the words "after reversal of decision on breakdown of marriage" from third sentence of Article 11.3.

         Ramiz Rzayev Chairman of the Supreme Court