Who is behind the contradictory statements of the Court of Appeal?

The Baku Court of Appeal (BCA) has completed the judicial examination of the claim of the owners of the commercial company “FB-Somrap” Anar Garibov and Agha Aliyev against the “Azur” shopping center owned by Fuad Rzayev and Babek Babayev. On March 1, the fourth session took place, in which the judge of Vusala Bakhshaliyeva unexpectedly refused to issue a court order for Garibov and Agayev on the decision that she herself had taken at the previous meeting. Garibov and Aliyev did not receive a written instruction from the court to an independent expert company to study and evaluate goods (branded clothing) and property damaged in the Azur warehouse.

These goods belong to “FB-Somrap” and Agha Aliyev, who sold clothes in a retail space (1285 sq m) rented from “Azur.”  Four years ago, the landlord unexpectedly and in violation of the contract sharply raised the rental price. Then the tenants said that they would not pay the high price not agreed in the contract and had already spent on major repairs of the leased premises. In response, their goods were taken out without the permission of the owner and closed in a warehouse where they rotted. In this episode, about a million manats were damaged to Garibov and Aliyev. The plaintiffs consider their property damaged. According to lawyers, the owners and officials of Azur are guilty of violating eight articles of the Criminal Code, for which they should be brought to criminal responsibility. Garibov and Aliyev demand a new examination of the damaged goods in order to demand full compensation from the violator.

At the meeting on March 1,  the judge Vusala Bakhshaliyeva first asked the Turan correspondent the reason for his appearance in the courtroom, then asked the parties to the process whether it was necessary for journalists to cover the process open to the press. The lawyer of the Azur firm was against the presence of the press, representatives of the plaintiff's side did not object to the publicity of the process. After the meeting, the judges decided to leave the journalist in the courtroom, reminding him of the ban on disclosing trade secrets. But nothing mysterious was said that day.

The trial day was held as part of clarifying the prosecution's questions that the evaluation commission will find out in case of inspection of damaged goods, whether experts have a state license, the reasons for the loss of 14 volumes of the case (at the last meeting it was about 10 volumes) of two flash drives with hundreds of videos and 700 photos, which show the previous condition of the goods and inspection of damaged clothes in the warehouse. Until the end of the trial, there was an ambiguity with the video and photo facts that disappeared from the court volumes.

Garibov is forced to offer the judge to examine these facts on the FAMOUS BRANDS AZUR Youtube channel, where he prudently posted the evidence. The judge agreed to watch on the Youtube channel, she had only two days to do this, since the verdict will be handed down on March 3. Anar Garibov told the judge that it was impossible to analyze the entire gigantic mass of evidence presented in 14 volumes of the case materials in 2 days, and this means that an unfair verdict will be passed soon. But  the judge Bakhshalieva rejected Garibov's doubts, saying that it was her duty to familiarize herself with all the facts presented. She could not postpone the sentencing in order to hold another meeting because of the procedural ban on stretching the appeal process for a period of more than three months and more than 4 meetings.

Anar Garibov questioned the objective consideration of the case. He also asked the court to specify the rules of court actions, justifying that the court is obliged to complete the case in 4 sessions, to which the judge refused. According to the lawyers, the judge could decide to suspend the consideration of the case until the result of the expert assessment is received. The lawyer of the injured party requested an additional 15 days before the completion of the last examination, but the court refused.

The lawyer presented to the court an agreement with Az Expert LLC, a certified appraisal company, a member of the Chamber of Commerce and Industry of the Republic of Azerbaijan. The judge demanded to submit a state license for this company, but Garibov objected, saying that this type of activity has not been subject to licensing since 2012. To this, the judge  explained that, according to the decision of the President of the country, specialized institutions should be engaged in the examination. On Garibov's proposal to transfer the expert assessment to the specialized institutions named by the court, the judge replied that such institutions have not yet been formed and the Center for Forensic Examination of the Ministry of Justice is engaged in this before their formation. On Garibov's proposal to transfer the case to the forensic examination center of the Ministry of Justice, the judge replied that there was already an assessment of this Center, which could not give the exact amount of the damaged goods.

The dispute continued, as a result, the company Garibov and Aliyev did not receive from the judge the decision necessary for the examination of the goods. On February 12 and 23, the lawyers addressed the court in writing via the electronic portal of the court with a request to receive the resolution promised at the previous meeting. But the judge Bakhshalieva rejected these arguments and repeated that she could not issue rulings in her office, that is, outside the court session, and it was impossible to hold the fifth court session due to procedural restrictions. The judge insisted that the victims could conduct an expert assessment of the goods on the basis of an oral court decision made at the last meeting. But the lawyers and the expert are sure that an oral decision is not enough, “Azur” would not allow experts into its warehouse, besides, the experts said that they would not enter someone else's commercial territory without a written court decision. The version of the lawyer and Garibov at the trial was confirmed by the lawyer of the “Azur” company, who said that his firm was against re-examination.

The claims of the representative of “Azur”, who asked Garibov, are interesting: Why did not they take their goods from their warehouse and thereby allowed it to be damaged. Garibov replied that they did not need damaged goods crawling with worms and covered with mold, besides, the owner of the goods was forbidden to enter and take out the goods even by the piece. Tenants have a named inventory of their property with a price for each unit of goods, all relevant documents are attached to the case and requires expert assessment to recover the market value of the goods from those who spoiled it. Garibov also recalled that two months after the theft of goods, they found his whereabouts thanks to the efforts of the police. And a year later, during a 17-day examination with the participation of the opposite party, they did not find a single item of clothing and most of the commercial equipment that could be reused or sold there.

The  trial was coming to an end. The judge assured the plaintiffs that she would not go to continue the trial and issue an examination order. Then only the result of the previous two examinations will be in the judicial folder. They are not complete, because the experts of the Forensic Examination Center of the Ministry of Justice examined all the clothes selectively for one day, then they simply refused to work there without gas masks, insofar as 20295 pieces of clothing were moldy and rotted. At the same time, the tenants presented to the court a comprehensive damage document consisting of a list of damaged goods and stolen goods and property prepared within 17 days with the participation of both parties.

The Forensic examination Center presented a conclusion on the complete damage of the goods without detailing and a named inventory of the damaged equipment. Based on the audit report, a 17-day detailed inventory of the damage with the participation of all parties and the decision of the Ministry of Justice examination center, the damaged part of the property is estimated at 503,662 manats. In addition, on the basis of the accounting documents attached to the case file, it is claimed that goods in the amount of 410,994 manats were lost, according to the attached two audit reports, the material damage caused to tenants from illegal actions amounts to 213,328 manats and the lost profit amounts to 348,318 manats.

Garibov did not intend to concede, demanded satisfaction of his rights, explained that according to the existing legislative norms, commodity expertise has been exempted from the state license since 2012, that with all the desire, no state agency will be able to issue a state license, since such a license is simply not issued. Therefore, the judge's requirement to present the license of an expert firm is illegal. The dispute ended with a warning from Judge Bakhshalieva, who told A.Garibov that if he continued to speak without following the judge's instructions - to sit down and be silent, the process would continue without his participation. Contrary to the provision of the last word at the last meeting accepted in judicial practice, the last word was not presented.

The owners and management of the “Azur” company do not come to court, and the lawyer of this company refused to answer Turan's questions. Turan asked Garibov to explain why he expressed doubt to the judge about the fairness of the expected ruling of the Court of Appeal, and which court decision he considers correct. If the Court of Appeal refuses to satisfy its requirements, what will be the next actions of FB-company?

Garibov said that the trial is one-sided, as it affects the interests of a large oligarchic group. "From the first day we petitioned the courts to apply a preventive measure and oblige the opposing party to fulfill the requirements of the contract until the final decision on the case. If such a measure had been taken by the court, I can assure you that our damage would not have taken such a scale. But this whole huge army of judicial and law enforcement agencies is simply engaged in the detection of domestic crimes, as for larger individuals and their family members, laws stop working here, and completely different mechanisms work - you tell me I tell you. What is the point of going to a notary and signing a long-term contract if the owners of large premises are confident in their impunity. And then we have to beat the thresholds of different institutions, as we have been doing for 4 years.

 

From our side, a telegram will be sent to the head of state indicating the true reasons and indicating high-ranking officials who interfere with the objective consideration of this case and the passing of a fair sentence. Next, an open letter to the head of state will be published. Then we plan to hold an open press conference with the participation of respected media. And then an appeal to the Supreme Court, law enforcement agencies. At worst, an appeal to the European Court of Human Rights. All these actions should put an end to the vicious practice of considering cases in our courts for the sake of high-ranking officials, oligarchs, and their family members.

If we want to see our children in a prosperous and just Azerbaijan, we have no right to remain silent and are obliged to bring the truth to the competent authorities and the President - the guarantor of our rights and legality.

P. S. The article was preparing to be published when the news came from the courtroom. A decision was made on March 3. Instead of announcing the verdict, the BCA decided to continue the proceedings and appoint an expert assessment with the involvement of both specialists of the Forensic Examination Center of the Ministry of Justice and the involvement of an expert of the injured party. The plaintiff will submit to the court within a week the necessary questions concerning the expert assessment of his property.

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