Civil Laws at Turkmenistan
Turkmenistan operates under a civil law system, heavily influenced by the legal traditions of continental Europe, particularly 19th Century German law as noted in the sources. Its legal framework is primarily based on codified laws. However, it's crucial to understand that the practical application of civil law in Turkmenistan is significantly impacted by the country's authoritarian political system and the lack of judicial independence.
Key Characteristics of Civil Law in Turkmenistan:
Civil Code: The cornerstone of civil law is the Civil Code of Turkmenistan (No. 294-I of July 17, 1998, with amendments). This code covers general provisions, property rights, obligations, intellectual property rights, and succession rights.
Hierarchical Legal System: The Constitution of Turkmenistan is the supreme law, followed by constitutional laws, ordinary laws and codes (like the Civil Code, Family Code, Housing Code, Labor Code, etc.), presidential decrees, and resolutions by the National Assembly.
Constitutional Supremacy (in theory): Article 140 of the Constitution states that in case of conflict between laws, other legislation, and the Constitution, the Constitution prevails.
Limited Judicial Independence (in practice): Despite constitutional guarantees of judicial independence, in reality, the judiciary is widely considered to have very little autonomy. Judges are appointed by the President for five-year terms and can be dismissed at will, making them highly dependent on presidential favor. This can lead to unpredictable application of laws and a lack of consistent enforcement.
Lack of Developed Jurisprudence: The Civil Code is drafted generally, requiring academic and judicial interpretation for its implementation. However, Turkmenistan's underdeveloped judiciary means there's a lack of robust jurisprudence to guide consistent application.
Islamic Law Influences: While primarily civil law, there are acknowledged influences of Islamic law in the legal system.
No Retroactive Force: Acts of civil legislation generally do not have retroactive force and apply to relations arising after their introduction.
Key Areas of Civil Law in Turkmenistan:
Law of Persons:
Legal Capacity: The capability to have civil rights and obligations is recognized equally for all physical persons, arising at birth and ceasing upon death.
Capacity to Act: The ability to acquire and perform civil rights and obligations arises in full at the age of majority, which is 18 years old.
Guardianship/Patronage: The Civil Code includes provisions for guardianship over minors and patronage over capable adults who cannot independently exercise their rights due to health conditions.
Family Law:
Governed primarily by the Family Code of Turkmenistan.
Marriage: Recognized only if registered by a civil registry office (ZAGS). Religious practices of marriage have no legal value.
Polygamy is prohibited.
Equal Rights for Spouses: The Family Code emphasizes equal personal non-property and property rights and obligations for spouses in family relations. Decisions on matters like motherhood, fatherhood, and child-rearing are to be made jointly.
Common Joint Property: Property acquired by spouses during marriage, regardless of who purchased it, is considered their common joint property.
Children's Rights: All children have equal rights regardless of nationality, race, gender, language, religion, origin, or other status, with the best interests of the child being a guiding principle.
Paternity: If a citizen of Turkmenistan is recognized as the father of a child whose mother is stateless, the child becomes a citizen of Turkmenistan regardless of the place of birth.
Medical Examination for Marriage: Persons wishing to marry can undergo free medical examinations and receive advice on medico-genetic issues and family planning. Results are confidential.
Law of Property:
The Law on Property (Law No. 306-V of November 21, 2015, as amended) and the Civil Code are central to property rights.
Inviolability of Property Rights: Article 12 of the Constitution affirms the inviolable right to private property, including means of production, land, and other material and intellectual property.
Foreign Ownership of Real Estate: The legal system does not expressly prohibit foreign citizens or legal entities from acquiring residential or commercial properties. The Housing Code and the Law on Property address these rights, subject to state registration.
Land Ownership: The Turkmenistan Land Code (dated October 25, 2004) does not permit land ownership by foreign states, legal entities, or individuals. Foreign entities may only be granted land leases for non-agricultural purposes (e.g., construction) or temporary placement of facilities.
Intellectual Property: Part IV of the Civil Code specifically covers intellectual property rights, including copyright, related rights, inventions, industrial designs, trademarks, and commercial names. It sets out rules for licensing, assignment agreements, compulsory licensing, and remedies for infringement.
Law of Obligations (Contracts and Delicts):
Freedom of Contract: Article 1 of the Civil Code sets out the autonomy of parties to decide on their contractual provisions, provided they do not contradict any law.
Formation of Obligations: Civil laws and obligations arise from legislative provisions, as well as from actions of physical and legal entities which, though not directly provided for, generate civil laws and obligations based on general principles and the spirit of civil legislation.
Damages: The Civil Code defines obligations, damages, and unfulfilled contracts.
Employment Contracts: Regulated by the Labor Code of Turkmenistan, which outlines types of contracts (indefinite-term, fixed-term), mandatory terms, procedures for execution, modification, and termination, as well as guarantees against unreasonable refusal to conclude an employment contract.
Law of Succession:
Part V of the Civil Code addresses succession rights.
The Law "On Notaries and Notarial Activities" (2015) also plays a role in affirming inheritance rights and procedures.
Inheritance rights are closely linked with property rights.
Challenges in Practice:
Opaque Legal System: The system can be opaque, and consistent application of laws is a concern.
Corruption: Corruption is reported to be endemic within Turkmen courts.
Difficulty for Foreigners: Given the challenges, foreign companies are often advised to include arbitration clauses in contracts stipulating foreign venues for dispute resolution. Turkmenistan is not a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Limited Access to Legal Information: While some codes are available, comprehensive and up-to-date legal information can be challenging to access.
In summary, while Turkmenistan has a codified civil law system largely influenced by European traditions, the practical realities of its authoritarian governance and limited judicial independence create significant challenges for the consistent and fair application of its civil laws.
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