Turkmenistan Legal Profile

The legal system in Turkmenistan is a civil law system, with Islamic law influences. There is an established hierarchy of laws, with the Constitution being supreme and followed by Constitutional laws, codes, ordinary law, presidential decrees and resolutions by the National Assembly. In practice, however, President Berdimuhamedow rules by decree and dominates legislative and judicial authorities; his decrees shape all walks of life, from politics and the economy to the social sphere. Despite the separation of powers being enshrined in the Constitution, the de facto power of legal governance rest purely in Berdimuhamedow’s hands.

The independence of the judiciary is guaranteed by Article Six of the Constitution, with power exercised in the Supreme Court and of Turkmenistan and its lesser courts. Judges are declared independent and subject only to the Constitution and law, however in practice the judiciary has little independence, if any at all. Berdimuhamedow appoints judges for five year terms and can dismiss them at will; thus, judges are continuously reliant on the President’s favour for their job. The President can even modify previously delivered court decisions. Thus, the judiciary is effectively an extension and confirmation of the Berdimuhamedow’s will.

Corruption is endemic within Turkmen courts and they are further undermined by deep clientelism and patronage networks. Even studying at a law school and obtaining a position as a judge or lawyer is rarely possible without financial payments to officials in the Ministry of Justice, which issues permits to engage in legal work using an opaque system. As such, foreign companies are advised to include arbitration clauses in contracts stipulating foreign venues, should disputes arise, although Turkmenistan is not a member of the 1958 New York Convention. Turkmen anti-corruption measures are symbolic and politically motivated. They provide Berdimuhamedow with a vector to portray himself as a fighter of corruption as well a mechanism to punish those who have fallen out of his favour, or have acted critically towards the state.

The Turkmen Civil Code is based upon that of 19^th Century Germany. The Code is drafted generally, meaning that academic and judicial interpretation is required to implement it, which Turkmenistan lacks owing to their underdeveloped judiciary. Article 1 of the Civil Code sets out the autonomy of parties to decide on their own contractual provisions, as long as these provisions do not contradict any aspect of law, whilst other articles define obligations, damages and unfulfilled contracts. Further key legislation includes the Law on Foreign Concessions, which defines the conditions of establishment and activities of foreign concessions in Turkmenistan, and the law on Hydrocarbon Resources, which states conditions concerning the exploration, extraction and transportation of Turkmenistan’s hydrocarbon resources.

Turkmenistan is a signatory to many international treaties, including the Geneva Conventions, United Nations Convention Against Corruption, and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which established the International Centre for Settlement of Investment Disputes. Turkmenistan is also a member of numerous international organisations, including the International Monetary Fund, the Organisation for Security and Co-operation in Europe, the Commonwealth of Independent States and the World Health Organization. Article 9 of Turkmenistan’s Constitution recognises ‘the priority of the universally accepted norms of international law’ and their primacy. Nevertheless, given the difficulties in enforcing domestic law consistently and equally, the implementation of international law remains problematic.

1 http://www.nyulawglobal.org/globalex/Turkmenistan.html#_A_hierarchy_of_Turkmenistanlaws.

2 http://www.osce.org/odihr/262336?download=true.

3 http://www.bti-project.org/en/reports/country-reports/detail/itc/tkm/itr/pse/; http://www.business-anti-corruption.com/country-profiles/turkmenistan.

4 https://pages.law.illinois.edu/p-maggs/codes.htm.

5 http://www.osce.org/odihr/262336?download=true.

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