Turkmenistan

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Background

Turkmenistan is a Central Asian country bordered by Kazakhstan, Uzbekistan, Afghanistan, Iran, and the Caspian Sea. It is one of the least densely populated countries in the world, with vast desert landscapes dominated by the Karakum Desert. The country has a rich history, once forming a crucial part of the ancient Silk Road trade network. Turkmenistan was part of the Soviet Union until gaining independence in 1991 following the USSR’s dissolution. Since then, the country has been ruled by a series of authoritarian leaders, starting with Saparmurat Niyazov, who declared himself "Turkmenbashi" (Leader of the Turkmen) and established a highly centralized and cult-like government. His successor, Gurbanguly Berdimuhamedov, ruled from 2006 to 2022, maintaining strict state control while attempting limited economic and social reforms. In 2022, his son, Serdar Berdimuhamedov, assumed the presidency, marking the first hereditary transition of power in the country’s post-Soviet history. Turkmenistan is known for its political isolation, strict government censorship, and vast natural gas reserves, which play a critical role in its economy and international relations. Despite its wealth in energy resources, much of its population faces economic hardships, limited personal freedoms, and a tightly controlled media landscape.

The Legal system

Turkmenistan follows a civil law system that is heavily influenced by its Soviet legal heritage. The country's legal framework is based on codified laws and statutes, rather than judicial precedents as in common law systems.

- Civil Law Tradition: Like many post-Soviet states, Turkmenistan’s legal system is rooted in the Soviet-era legal structure, which prioritizes state control and centralized governance.

- Constitution-Based: The Constitution of Turkmenistan (first adopted in 1992 and amended several times) serves as the supreme legal document.

- Authoritarian Influence: While the legal framework is structured around civil law principles, the judiciary is not independent but rather controlled by the executive branch.

- Limited Rule of Law: Courts operate under strong government influence, and legal decisions often reflect political rather than judicial considerations.

- Human Rights Concerns: International organizations frequently criticize Turkmenistan for restricted civil liberties, lack of transparency, and suppression of dissent.

Although Turkmenistan's legal system is based on civil law, in practice, it functions under an authoritarian model where the executive branch dominates the judiciary and legislative processes.

Legal Aid

State-Sponsored Legal Aid: In Turkmenistan, the legal aid system is primarily managed by the Bar Association, which oversees the provision of legal services in both criminal and civil cases. Legal aid is delivered through: panel appointments and pro bono schemes:

Panel Appointments: Lawyers are appointed ex officio or through contracts to represent individuals requiring legal assistance.

Pro Bono Schemes: Several law firms mandate pro bono services as part of their practice, and junior lawyers often engage in pro bono work to gain experience.
The courts and police maintain rosters of legal aid providers on duty and assign them as needed. State-funded legal aid services are available in both urban and rural areas; however, the quality of services tends to be higher in urban centers. This disparity is partly due to the close-knit nature of rural communities, where legal aid providers may have personal relationships with other justice actors, potentially affecting the impartiality of proceedings.

Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid: While specific NGOs dedicated solely to legal aid in Turkmenistan are not prominently documented, international organizations have been active in promoting access to justice:

American Bar Association Rule of Law Initiative (ABA ROLI): Since 1999, ABA ROLI has been involved in Turkmenistan, focusing on women's rights, criminal law reform, legal assistance, and community development.

United Nations Development Programme (UNDP): In July 2024, UNDP and the Government of Turkmenistan launched initiatives to strengthen the country's legal aid provision, aiming to enhance the rule of law and access to justice.

Number of Lawyers: Precise statistics on the total number of lawyers in Turkmenistan, categorized by criminal or civil specialization, are not readily available. The legal profession is regulated by the Bar Association, and the Ministry of Justice oversees legal practices within the country.

Source of Defendants Rights

Defendant’s rights in Turkmenistan are primarily derived from the Constitution, national laws, and the criminal procedure code. However, in practice, these rights are often limited due to government control over the judiciary and legal system.

National Sources of Defendant’s rights:
The constitution of Turkmenistan

Article 34: guarantees the presumption of innocence until proven guilty by a court of law.

Article 33: Protects citizens from arbitrary arrest or prosecution

Article 103: Provides the right to a fair trial and legal defense

Article 28: Declares the equality of all citizens before the law, regardless of social status or background

The Criminal Procedure Code of Turkmenistan: Details the rights of defendants during criminal proceedings, including access to a lawyer, the right to remain silent, and protections against self-incrimination. Provides rules for law enforcement on arrest, detention, and interrogation to ensure due process.

Law on Advocacy and the Legal Profession: Regulates the right to legal representation and defines the role of defense lawyers in criminal proceedings

International Sources of defendant’s rights:
Turkmenistan is a signatory to several international human rights treaties that outline defendants’ rights, but implementation remains inconsistent.

United Nations Treaties:

International Covenant on Civil and Political Rights (ICCPR) (Ratified 1997): Guarantees due process, fair trial rights, freedom from torture, and protection against arbitrary detention.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) (Ratified 1999): Prohibits the use of torture or coercion to obtain confessions.

Universal Declaration of Human Rights (UDHR) (Adopted 1948): Provides general principles on human rights, including access to legal representation and fair trial rights.

Regional Agreements and Treaties: Turkmenistan is a member of the Commonwealth of Independent States (CIS), which has agreements related to legal cooperation and human rights. The country is also a member of the Organization for Security and Cooperation in Europe (OSCE), which promotes democratic and legal reforms.

Rights of the Accused

Double jeopardy: Article 36 of the Constitution of Turkmenistan explicitly prohibits double jeopardy, stating that no one can be subject to repeated criminal prosecution and conviction for the same crime.

Legality principle: The Criminal Code emphasizes the principle of legality, asserting that the criminality of an act, its punishability, and other legal consequences are determined solely by the Criminal Code. The application of analogy in criminal law is not permitted.

Presumption of innocence: While the presumption of innocence is a fundamental principle in many legal systems, specific provisions regarding this principle in Turkmenistan's legislation are not detailed in the available sources.

Standards of proof and standards for conviction: The Criminal Code mandates that a person can be held criminally liable only for actions (or inactions) that have caused harmful effects for which their guilt is established. Criminal prosecution for innocent harm is not allowed

Procedure with witnesses: The Code of Penal Procedure outlines that participants in the process who do not know the language in which legal proceedings are conducted have the right to make statements, offer explanations, declare petitions, bring claims, and get acquainted with all case papers in their native language or another language they know, using translation services as necessary.

Capital Punishment: Capital punishment was abolished in Turkmenistan in 1999. The 2003 Constitution reinforces this, stating that the death penalty is completely abolished and banned forever.

Ex Post Facto punishment: The principle of legality in the Criminal Code implies that only actions defined as crimes at the time of their commission can lead to criminal liability, thereby prohibiting ex post facto punishment.

Freedom from prolonged pre-trial detention: The law entitles detainees to immediate information about the reasons for their detention and the charges against them. However, reports indicate that authorities do not always implement provisions such as the bail system and surety, which could mitigate prolonged pre-trial detention.

Right to counsel: The Code of Penal Procedure ensures that participants in the process have the right to make statements, offer explanations, declare petitions, and bring claims. While the right to counsel is a fundamental aspect of fair trial rights, specific provisions regarding this right in Turkmenistan's legislation are not detailed in the available sources.

Right to habeas corpus: The Code of Penal Procedure provides that everyone has the right to liberty and security of person. Detention or imprisonment is permitted only on the bases and according to the procedures established by law. Detainees must be immediately informed of the reasons for their detention and the specific crime they are suspected or accused of.

Right to medical care: While the right to medical care is an essential aspect of detainee rights, specific provisions regarding this right in Turkmenistan's legislation are not detailed in the available sources.

Right to notice of charges: The Code of Penal Procedure mandates that each detainee is immediately informed of the bases of their detention and the qualification of the crime they are suspected or accused of committing.

Right to non-self-incrimination: While the right against self-incrimination is a fundamental principle in many legal systems, specific provisions regarding this right in Turkmenistan's legislation are not detailed in the available sources.

Right to a speedy trial: The Code of Penal Procedure emphasizes that the procedure for criminal proceedings is single and obligatory for all criminal cases and participants, suggesting an intent to conduct trials without undue delay.

Right to a trial by jury: There is no trial by jury in Turkmenistan's legal system.

Right to appeal: The Code of Penal Procedure provides that actions and judgments by criminal prosecution authorities can be appealed according to established procedures. Each convict has the right to a review of the court verdict and to petition for pardon or mitigation of punishment.

Rights of Counsel

Legal Basis for the Right to Counsel: the right to legal representation is guaranteed under the Constitution of Turkmenistan and the Criminal Procedure Code. Every individual accused of a crime has the right to a defense lawyer to ensure a fair trial and protect their legal rights.

When the Right to Counsel Begins: The right to counsel begins from the moment a person is: detained by law enforcement, formally charged with a crime or informed of their status as a suspect in a criminal investigation The suspect must be informed of their right to a lawyer immediately upon detention or accusation

Access to a Lawyer: The suspect or accused has the right to: choose their own lawyer, request the appointment of a state-provided lawyer if they cannot afford one, consult with their lawyer in private and confidentiality. Law enforcement and investigative authorities must facilitate access to a lawyer without undue delay

Role of the Defense Lawyer: The Defense lawyer plays a critical role in safeguarding the rights of the accused, including: advising the accused on their legal rights and options, participating in interrogations and investigative procedures, reviewing case materials and evidence, challenging the legality of detention, searches, seizures or other procedural actions, representing the accused in court hearings and trial proceedings and lastly filing appeals or motions to protect the accused’s rights.

Presence During Interrogation: The accused has the right to have their lawyer present during all interrogations conducted by law enforcement or investigative authorities. Any statements made by the accused in the absence of their lawyer may be challenged and excluded from evidence if obtained in violation of this right.

State-Provided Legal Aid: If the accused cannot afford a lawyer, the state is obligated to provide one free of charge. State-provided lawyers are appointed by the Bar Association or other relevant legal bodies in Turkmenistan. The quality of legal representation must meet professional standards to ensure effective defense.

Waiver of the Right to Counsel: The accused may choose to waive their right to a lawyer, but this waiver must be:
- Voluntary.
- Informed (the accused must understand the consequences of waiving this right).
- Documented in writing or recorded by law enforcement.
Even if the right to counsel is waived, the accused can request a lawyer at any stage of the proceedings.

Enforcement of the Right to Counsel: Violations of the right to counsel can lead to:
- Exclusion of evidence obtained in violation of this right.
- Appeals against procedural decisions or the outcome of the trial.
- Judicial review of the fairness of the proceedings.
The accused or their lawyer can file complaints with the court or the Prosecutor’s Office to address violations of the right to counsel.

Pre-Trial Procedure

Police procedure

Complaint/information: Individuals, organizations, or law enforcement agencies can file a complaint or report a crime to the police or the Prosecutor's Office. The Police are required to record the complaint and conduct a preliminary check to determine if there are sufficient grounds to initiate a criminal investigation. If the complaint is credible, the police or investigative authorities will open a criminal case and notify the complainant

Arrest, Search and Seizure Laws: Police officers in Turkmenistan may stop and frisk individuals if there is reasonable suspicion that they are involved in criminal activity or are carrying illegal items (e.g., weapons or drugs). The stop and frisk must be conducted in accordance with the law, and the individual must be informed of the reason for the stop. An arrest can be made if there is sufficient evidence or reasonable suspicion that a person has committed a crime. The police must inform the suspect of the grounds for arrest and their rights, including the right to a defense lawyer. The arrest must be reported to the Prosecutor’s Office within 24 hours, and a court hearing must be held within 48 to 72 hours to determine the legality of their detention

Searches: Searches of a person, home or property require a court order, except in urgent cases where delay could lead to the destruction of evidence. During a search, the police must: present a warrant, ensure the presence of witnesses and provide a written record. The suspect or their lawyer can challenge the legality of the search and request the exclusion of unlawfully obtained evidence.

Enforcing the Rules: Exclusionary Rule: Evidence obtained through illegal means (e.g., unlawful searches, coercion, or violations of procedural rights) may be excluded from the case by the court. Nullity: procedural violations (e.g., failure to inform the suspect of their rights or obtain a proper warrant) can lead to the nullification of certain actions or evidence. The accused or their lawyer can file motions to challenge illegal police procedures and seek remedies for violations of their rights

Lineup and Other Identification Procedures: Lineups are conducted to allow witnesses or victims to identify suspects. The suspect has the right to have their lawyer present during the lineup. The lineup must be conducted fairly, with individuals of similar appearance, and without suggestive behavior by the police

Other Identification Procedures: Other identification methods, such as photo arrays or show-ups, may also be used. These procedures must comply with legal standards to ensure fairness and reliability

Pre-Trial Detention: Pre-trial detention is permitted for serious crimes, subject to judicial approval. The court reviews the necessity of detention based on factors such as:

• The severity of the crime
• Risk of flight
• Potential obstruction of justice
• Public safety concerns
• The maximum duration of pre-trial detention is defined by law and can be extended with judicial approval

Before Formal Charge in Court:

During the investigation phase, the policy may interrogate a suspect to gather information

The suspect must be informed of their rights, including:

• The right to remain silent.
• The right to a defense lawyer
• The right to refuse to answer questions without legal representation
• Coercion, threats or torture during interrogation are strictly prohibited

After Defendant is Formally Charged:

Once formally charged, the suspect (now the defendant) can only be interrogated in the presence of their lawyer. The defendant has the right to review the charges and evidence against them and to prepare a defense.

The Turkmenistan judicial system for proceedings in criminal cases has several levels: local courts (in particular - district and city courts); regional courts (and that of the city of Ashgabat); and the Supreme Court of Turkmenistan.

Enforcing the Rules: Any statements or confessions obtained through illegal means (e.g., coercion, torture or violation of procedural rights) are inadmissible in court. The defendant or their lawyer can file motions to exclude unlawfully obtained evidence or challenge the legality of the interrogation process

Initiation of Criminal Proceedings: A criminal case in Turkmenistan begins when law enforcement authorities receive a report of a crime from individuals, organizations, or through direct discovery by law enforcement agencies. The Prosecutor’s Office and Investigative Authorities (such as the police or the Ministry of Internal Affairs) evaluate the report to determine whether to initiate criminal proceedings. A preliminary check is conducted to assess the credibility of the crime report and determine if there are sufficient grounds to proceed with an investigation.

Investigation Phase: A preliminary investigation is mandatory for serious offenses, as defined under the Criminal Code of Turkmenistan. Investigators, under the supervision of the Prosecutor’s Office, collect evidence, conduct interrogations, and examine the crime scene. The suspect must be informed of the charges against them and has the right to a defense lawyer from the moment of detention or formal accusation.

Detention and Arrest: A person may be detained if there is reasonable suspicion of their involvement in a crime, based on evidence. Detention must be reported to the Prosecutor’s Office within 24 hours. A prosecutor must consider a decree on sanctioning arrest within 48 hours from the time of the receipt of notification of the arrest from the investigative authority, consider all case papers, interrogate the accused (suspected) person and give a sanction for arrest or reject such sanction The decree with the prosecutor’s sanction of the arrest or with a note refusing the decree of arrest must be forwarded to the interrogation officer, investigator and the accused (suspected) person and shall be performed immediately The Ordinance and materials should be submitted to the prosecutor not later than within 24 hours after the person is question was physically arrested The investigative authority is obliged to notify relatives of the suspect about the arrest within 24 hours. If the detainee is a foreign citizen, the embassy, consulate or other representative office of his/her/their state must be notified immediately (as soon as practically possible) In exceptional cases such notice may be delayed for a period not exceeding 10 days (except for instances with minors)

Rights of the Accused: Under Turkmen law, the accused has the right to: Remain silent and not testify against themselves. Legal representation (a defense lawyer). Be informed of the charges in a language they understand. Access case materials and evidence. Challenge evidence or procedural actions. Contact family members or consular authorities (if a foreign national). Receive medical assistance if needed.

Pre-Trial Detention and Bail: A term of arrest i n the course of pre-trial proceedings may not exceed 2 months For serious crimes, the accused may be held in pre-trial detention for extended periods of up to 18 months. The suspect may be released on bail or under other conditions, such as house arrest or travel restrictions.

Collection of Evidence:

• Law enforcement agencies gather evidence through:
  - Witness statements.
  - Forensic analysis.
  - Surveillance.
  - Expert examinations.
  - Search and seizure operations (with judicial approval)

• The suspect and their lawyer have the right to:
  - Challenge the legality of evidence collection.
  - Request the exclusion of unlawfully obtained evidence.

Indictment and Pre-Trial Hearing:
If sufficient evidence is collected, the Prosecutor’s Office files an indictment. A pre-trial hearing is conducted where the court:
- Reviews the case for procedural violations.
- Determines whether the case should proceed to trial or be dismissed.

Judicial Oversight and Role of the Prosecutor: The Prosecutor’s Office supervises the investigation to ensure compliance with the law. Courts have the authority to intervene in cases of procedural violations or illegal detentions. The accused and their lawyer may appeal procedural decisions or the legality of pre-trial detention before the trial begins.

Court Procedures

Pre-Trial Procedures

• Initial Court Appearance: Upon detention, individuals in Turkmenistan must be informed of the reasons for their detention and the charges against them.
• Charging Instrument: The formal accusation against the defendant is documented in a charging instrument, which outlines the alleged offense and its legal basis. This document is provided to the defendant to ensure they are aware of the charges
• Preliminary Hearing: A preliminary hearing may be conducted to determine whether there is sufficient evidence to proceed to trial.
• Pre-Trial Motions: Both the defense and prosecution can file motions before the trial to address procedural or substantive issues, such as the admissibility of evidence or requests for dismissal.
• Discovery: The Criminal Procedure Code of Turkmenistan provides for the exchange of evidence between the defense and prosecution.

Trial Procedures

• Nature of the Trial: Trials in Turkmenistan are supposed to be conducted based on the principles of fairness and equality.
• Defendant: The defendant has the right to be present during the trial, to be informed of the charges, to present evidence and to cross-examine witnesses. The presumption of innocence is formally recognized.
• Lawyers: Both the prosecution and defense are represented by legal counsel.
• Expert Witnesses: Either party may call upon expert witnesses to provide specialized knowledge.
• Judges: Judges oversee the trial proceedings and are tasked with ensuring adherence to legal protocols.
• Victims: Victims have the right to participate in the trial, provide testimony, and seek compensation.

Sentencing and Appeals

• Sentencing: Upon a guilty verdict, the court imposes a sentence based on the severity of the offense, considering mitigating and aggravating factors. Penalties may include fines, corrective labor or imprisonment.
• Appeals: Convicted individuals have the right to appeal the court's decision. The appellate process involves a higher court reviewing the trial's proceedings.

Right to Counsel and Ineffective Assistance:

• Right to Counsel: The Criminal Procedure Code guarantees the right to legal representation at all stages of the criminal process. If a defendant cannot afford an attorney, the state is supposed to provide one.
• Ineffective Assistance of Counsel: While the right to competent legal representation is formally recognized, there are no explicit provisions addressing claims of ineffective assistance of counsel. Defendants may raise concerns about their representation during appeals.

Other Grounds for Appeal: Appeals can be based on procedural errors, misinterpretations of the law, or new evidence.

Rights in Prison

Conditions of confinement: Inmates frequently lack access to sufficient food, clean drinking water, and medical care. In the police cells and in prison you will probably share a cell with several other people. You may have access to your belongings, but this depends on whether the police consider them evidence. If considered as evidence you will not be allowed to keep your possessions. Your passport and other identification will be taken away and kept by the prison authorities in your file. Reports indicate that prisoners endure regular beatings, torture, and other forms of abuse.

Right to medical care in prison: in the larger prisons, there is a health service under the authority of a practitioner. This service has an infirmary where basic medical treatment can be given. Daily examination, vaccinations and urgent dental care of the prisoners as well as examinations of newly arrived prisoners in the institution are carried out by this service. Basic medical attention is free of charge.

Restriction of rights: usually there is weekly or monthly access to a payphone. How frequently it will be permitted by prison authorities depends on each prison’s rules and regulations, behaviour of a prisoner, his article of crime etc. Friends/family can send mail/parcels directly to the prison. Foreign nationals in prison in Turkmenistan usually can work or study. Prisoners say that money is vital inside the prison. Prison food is free but very basic.

Women’s rights in prison: Female prisoners in Turkmenistan encounter severe persecution and gender-specific abuses. Reports indicate that women are often forced into sexual relations with prison officials and subjected to torture.

Criminal code article 44 highlights the different type of punishments allowed if found guilty of a crime:
• Imposition of the duty to make amends for the harm cause
• A fine
• Deprivation of the right to hold a certain office, or to engage in certain activity
• Deprivation of State awards, military or other ranks
• Correctional works
• Imposition of the duty to reside in a certain area
• Confiscation of property
• Restriction of freedom
• imprisonment

Resources

- Constitution of Turkmenistan (18 May 1992) (amended 21 January 2023).

- Criminal Code of Turkmenistan (12 June 1997) (amended 13 November 2021).

- Non-Governmental Organizations Brief the Committee on the Elimination of Discrimination against Women on the Situation of Women in Niger, Tajikistan, Italy and Turkmenistan’ (United Nations, 29 January 2024) https://www.ungeneva.org/en/news-media/meeting-summaries

- Rights and Freedoms of Turkmenistan Citizens, ‘Report for the 44th Universal Periodic Review on Turkmenistan’ (2023)

- The Ovadan Depe Prison: Medieval Torture in Modern Turkmenistan (September 2014) www.provetheyarealive.org

- Turkmenistan’s Independent Lawyers Association and Turkmen Initiative for Human Rights, Turkmenistan’s Penitentiary Facilities (February 2010)

- Turkmenistan, Presidential Decree on the Abolition of the Death Penalty, No. PP-3003 (28 December 1999).