International Law and its connection with the domestic law

Turkmenistan as a full-fledged subject of the world community acknowledges the priority of generally recognized norms of the international law.(Article 6 of the Constitution with changes and amendments dated December 27, 1995) At the same the Constitution does not contain provisions specifying the status of the international agreements and the domestic law in case of their incompliance. If an international agreement establishes other, than specified by the legislation of Turkmenistan rules, the provisions of the international agreement are applied.(Article 3 of the Law "On the Procedure of Signing, Implementation and Denunciation of International Treaties of Turkmenistan" dated June 15, 1995)

FREEDOM OF ASSEMBLY:

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International Law and its connection with the domestic law

Turkmenistan as a full-fledged subject of the world community acknowledges the priority of generally recognized norms of the international law.(Article 6 of the Constitution with changes and amendments dated December 27, 1995) At the same the Constitution does not contain provisions specifying the status of the international agreements and the domestic law in case of their incompliance. If an international agreement establishes other, than specified by the legislation of Turkmenistan rules, the provisions of the international agreement are applied.(Article 3 of the Law "On the Procedure of Signing, Implementation and Denunciation of International Treaties of Turkmenistan" dated June 15, 1995)

FREEDOM OF ASSEMBLY:

Legal framework

The Constitution guarantees freedom of assemblies, meetings, demonstrations in accordance with the established by the legislation procedure (Article 27 of the Constitution). Irrespective of the fact that the freedom of assembly is guaranteed by the Constitution, Turkmenistan has not adopted the law enabling it subsequent implementation. Some assemblies are regulated by specific laws, for instance: the law "On Elections of Deputies of Medjlis of Turkmenia" or the Law "On Freedom of Conscience and Religious Organizations in Turkmenistan". It is also necessary to mention that legal regulation of assemblies in Turkmenistan once it came to adoption in 1998 of the Decree imposing a ban on assemblies, meetings, street marches and demonstrations.

The lack of the Law regulating peaceful assemblies legally should be considered as a possibility of conducting of any public events guided by the Constitution norms. The availability of a certain procedure of organization and conducting of meetings itself assumes limitation of rights and freedoms, which in accordance with the Constitution must be established by the Law (Article 16 of the Constitution). Due to the lack of law criminal responsibility imposed for violation of the procedure of organization and conducting of assemblies, meetings, street marchers and demonstrations causes concerns (Article 223 of the Criminal Code of Turkmenistan).

Types of assemblies defined and protected in domestic law

The Constitution of Turkmenistan stipulates conducting of public events in the form of assemblies, meetings and demonstrations. This list is enlarged with street marchers, (Article 223 of the Criminal Code of Turkmenistan) public worships, religious devotions and ceremonies, (The Law "On Freedom of Conscience and Religious Organizations in Turkmenistan", adopted on December 10, 1998) and also assemblies for discussion of meetings put for a referendum (The Law "On Referendum", adopted on April 12, 1993). However, further legal regulation of the procedure of organization and conducting of public events, as the Constitution requires, has not been specified in a separate law. Some other types of assemblies enjoying with a special status have been legally specified, including meetings conducted in relation with elections to municipal councils (gengeshes), (The Law "On Elections of Members of Gengeshes", adopted on November 25, 1997) People's Council (Halk Maslahats), (The Law "On the Status of People's Representatives (Halk Vikillery)", adopted on November 25,1997 and the Law "On Elections of People's Representatives (Halk Vikillery)", adopted on November 25, 1997) or Parliament (Меdjlis).

Possible limitations/restrictions/conditions, including requirements for notification

Human rights are inviolable and inalienable. No one can deprive a person of any rights and freedoms or restrict his/her rights otherwise than in accordance with the Constitution or laws (Article 16 of the Constitution). The Constitution allows suspension of implementation of citizens' rights and freedoms, which is stipulated by the Constitution only in state of emergency or martial law in according to the procedure and within the limits established by the Constitution and laws (Article 44 of the Constitution).

Place, route and time of assemblies

This issue is not specified by law.

Power to ban assemblies

The law does not specify this but nevertheless the Criminal Code imposes responsibility for violation of the established by the law procedure of organization and conducting of events. In practice during the years of independence in Turkmenistan the ban covers various types of activities, included in ones conducted indoors. Among them there is a ban imposed on conducting founding movements and congresses of public movements and political parties and also activities of a religious character and religious organizations.

Requirements for organizers, their rights and duties (including liability and penalties)

Guided by provisions of the Constitution each citizen together with others can realize his/her right to freedom of peaceful assemblies at to his/her discretion. It is applicable to a free choice place and time of conducting of an event, informing of the bodies of power about an event or conduct it without informing.

In spite of the lack of the law regulating conducting of assemblies, meetings, street marchers and demonstrations the Criminal Code stipulates liability for violation of the established by the law procedure of organization and conducting of events. Preliminary investigation of cases of this type of crime is made by office by public prosecutor investigators (Article 224 of the Criminal Procedural Code of Turkmenistan). Criminal liability is imposed only if earlier administrative punishment was imposed for the same actions. Organizer's violation of the procedure of conducting of organization and conducting of an event is punished with a fine in the amount from 5 till 10 average salaries or correction work for a period of one year or imprisonment for a period of six months (Article 223 of the Criminal Code of Turkmenistan).

Requirements for participants, their rights and duties (including liability and penalties)

Under conditions of the lack of the Law any participant of an event on equal terms with an organizer can realize his/her right to freedom of assemblies at his/her discretion due to provisions of the Constitution and international treaties on human rights.

Stipulated by the Criminal Code liability for violation of the established by the law procedure of organization and conducting of public events is imposed only on organizers of an event and do not cover other participants. However, due to the lack of legal regulation it is difficult to judge how the norms of the Code will be applied in practice with regard to participants.

State and police powers and responsibilities (including liability and penalties)

Stipulated by the Constitution rights and freedoms per se are adequate grounds for imposing liability on officials for their implementation but there is no law imposing a duty on officials for citizens' implementation of their right to freedom of public assemblies. At the same time some events enjoy with a special status and guaranteed by a special care of the bodies of power.

Local executive bodies and local governments are imposed as a duty to ensure preparation of meeting for nomination of candidates to municipal councils (gengeshy), People's Council (Halk Maslahats) and parliament (Меdjlis). Local executive bodies and local governments are responsible for calling the meetings with people's representatives, which turns those events into sanctioned ones. (Article 11of the Law "On the status of People's Representatives (Halk Vikillery)") Similar situation is with meetings arranged for nomination of candidates to deputies of Medjlis, conducting of which are ensured by territorial election commissions, (Article 30 of the Law "Оn elections of deputies to Medjilis of Turkmenistan") bodies of local executive power and local governments (Article 37 of the Law "On elections of deputies to Medjilis of Turkmenistan").

The Constitution guarantees citizens the right to request through court a compensation of material and moral damage caused by illegal actions of state bodies (Article 41 of the Constitution).

The Criminal Code contains two articles, which can be applied to officials for violation of preventing from realization of right to free peaceful assemblies - for abuse or exceeding of official duties. Preliminary investigation of those crimes is within the competence of an office of the public prosecutor investigators (Item 1 Article 224 of the Criminal Procedural Code of Turkmenistan).

Abuse of official duties, i.e. officials' use of their authorities in defiance of the interests of their service, in case this action lead to considerable violation of rights and legal interests of citizens, organizations leads to deprival of the right to occupy certain positions and engaged into certain activities for a period up to five years or fine in the amount from twenty up to forty average salaries or correction work for a period up to two years or imprisonment for a period up to three years (Item 1 Article 181 of the Code).

Exceeding of official authorities or official's commitment of actions explicitly exceeding the limits of his/her authorities, which led to considerable violation of rights and legal interests of citizens, organizations or protected by law interests of the society or the state is punished with deprival of the right to occupy certain positions or be engaged into certain activities for a period up to five years or fine in the amount from twenty up to average salaries or correction work for a period up to two years or imprisonment up to three years (Item 1 Article 182 of the Code).

Rights of appeal

The Constitution guarantees the judiciary defense of honor and dignity, individual and political rights and freedoms of a person and citizen stipulated by the Constitution and laws. The actions of public bodies and public organizations committed with violation of the law, exceeding of authorities, damaging rights and freedoms of citizens can be appealed in a court (Article 40 of the Constitution). The absence of the law, stipulating the procedure of preparation of peaceful meetings and determining the commitments of bodies of power to ensure their conducting to some extend makes it more complicated to appeal the actions of officials. At the same time the guaranteed by constitutional norm freedom of assemblies must be ensured with a mechanism of enforcement and protection.

The appeal in a court of violating the constitutional rights actions of public bodies, local governments and officials is guaranteed by a separate act (Article 2 of the Law "On Appeal in Court of Actions of State Bodies, Public Associations, Local Governments and Officials Violating Constitutional Rights and Freedoms of Citizens", adopted on February 6, 1998). Any citizen can file a claim at his/her discretion to a court according to the place of location of body or place of work of an official, whose actions are being appeale (Article 3 of the Law). Solely a judge considers the claims within a ten days period in accordance with the Civil procedural legal proceedings (Article 10 of the Law). Other citizens' appeals are regulated by the Law "On Citizens' Appeals and Procedure for Their Consideration" (Adopted by a Resolution of Majlis of Turkmenistan dated April 30, 1999). Appeals, which do not require checking, are considered within a period not exceeding fifteen days and those, which require checking - for a period not exceeding one month (Article 12 of the Law).

Analysis was prepared by OSCE ODIHR expert Dmitry Kabak. The author extends gratitude to the Ecological Club "Catena" for assistance in searching of legal acts. In preparation of the section he used a legal electronic database Blacksand Group.

Posted in June 2005

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