TURKMENISTAN: A STEP TOWARDS ESTABLISHING AN

C O N F I D E N T I A L SECTION 01 OF 02 ASHGABAT 001080 SIPDIS STATE FOR SCA/CEN DOJ FOR OPDAT/ALEXANDRE, LEHMAN AND NEWCOMBE E.O. 12958: DECL: 08/26/2019 TAGS: KJUS PGOV PHUM TX SUBJECT: TURKMENISTAN: A STEP TOWARDS ESTABLISHING AN INDEPENDENT JUDICIARY Classified By: Charge Richard Miles, reasons 1.4 (B) and (D). ¶1. (C) SUMMARY: Turkmenistan's parliament recently passed new laws on courts, the Procuracy, and a new Criminal Procedure Code, and the government plans further changes to the legal system in the near future. While most of the changes introduced in these laws focus on administrative procedure and codifying current practice, there were substantive reforms that specify the judicial branch's "independence" and limit the Procuracy's power. It remains to be seen whether the provisions of the new laws are just window dressing intended to give appearance of genuine reform, or whether current practices change in a positive direction as a result of the laws' implementation. END SUMMARY. ¶2. (SBU) Turkmenistan is in the process of updating its legislation regarding its legal system. On August 24 and 25, new Laws on Courts and the Procuracy were published in the state newspaper "Neytralniy Turkmenistan," and a new Criminal Procedure Code was finalized in July. The Mejlis is currently working on drafts of laws on lawyers, on the penitentiary system, and a new Criminal Code. According to law professor and legal consultant Polina Povelitsina, the government intends to modernize its laws, bring them in line with international standards, and create a legal environment that will make investors more comfortable doing business in Turkmenistan. It is consulting legal experts, both foreign and domestic, in the process. MOST CHANGES ARE SUPERFICIAL ... ¶3. (SBU) Povelitsina focused on the new Law on Courts in her meeting with poloff. She explained that one of the government's priorities was to make its laws match the bureaucratic structure in the country. The previous version of the Law on Courts was from 1991, when Turkmenistan was still part of the Soviet Union. The new law incorporates an updated Turkmen vocabulary, giving Turkmen names for regional and local courts, to replace the Russian names. It also acknowledges international law, provides for taking cases to international arbitration, and gives stateless people and foreigners the same rights at Turkmen citizens. ¶4. (SBU) The Turkmen Government also aimed to codify current practices in the new law. Previously, judges received free apartments, transportation, and other benefits without a legal basis for such compensation. The new version of the law specifies that they are entitled to all those things, as well as a good salary. The new law also details the requirements for and rights of "lay judges." Lay judges were common in Soviet courts, and Turkmen practice is to have two of lay judges sit with a judge and hear cases. They are chosen by their place of employment or community where they reside to serve for two weeks every year for a five-year term. They have the same powers as judges, and since there are two of them, they can out-vote a judge on sentencing decisions. One change from the previous law, however, is that lay judges should receive training and can be recalled if they are not doing their job properly. Another change is that the new law reinstates bailiffs, who enforce court decisions. Their function had been given to the police, but experts found that the police were not enforcing court decisions. ¶5. (SBU) Povelitsina explained that the Turkmen government intended to create laws appropriate for a secular, democratic country. One of the issues she stressed when she provided comments and opinions about the law to parliamentarians was the use of the term "judge" to replace "kozi," a Turkmen word that was originally used to describe religious figures who heard cases and based their decisions on the Koran. Povelitsina argued that "kozi" was not an appropriate term for "judge" in a secular government. The new law also ASHGABAT 00001080 002 OF 002 establishes a system in which judges can specialize in administrative law, instead of all judges being generalists. ... BUT SOME ARE SUBSTANTIVE ¶6. (SBU) One bold addition to the new Law on Courts is a statement that judges are independent. Povelitsina said that not only is this stated outright, but the law includes practical provisions to make this possible, such as requiring the state to materially support judges to prevent them from taking bribes out of financial need. The law on the Procuracy was also changed to remove oversight power from the prosecutors. Now, if a prosecutor has concerns about a sentence, he must raise the issue with the Supreme Court, instead of changing the sentence through his own chain of command. Prosecutors are also no longer considered part of the judicial branch of government. However, an August 22nd amendment to the Criminal Code bolsters their law enforcement role by returning to them the right to search homes. ¶7. (SBU) Povelitsina opined that the new laws will be implemented, despite the blow to the Procuracy that they entail. She said that the populace of Turkmenistan has a high degree of legal knowledge and will be aware of the new laws. She has taught law for 30 years, and teaches over 300 students a year. In addition, there are many former judges in the country because of a provision that limits judges to two five-year terms. On a side note, Povelitsina said that many of these former judges now work at markets selling goods or are unemployed because the Ministry of Justice denies them licenses to practice law, for unexplained reasons. ¶8. (C) COMMENT: Although the statement in the law that judges are independent gives hope for some improvements to the legal system, implementation will be a challenge as old habits and practices die hard. Given the top-down structure of decision-making in Turkmenistan, it is hard to imagine that judges would make decisions based solely on the facts of a case, especially if a state interest is involved. Influence and bribery will also remain powerful forces. Still, the first step in introducing better practices is creating the proper legal framework, followed by the long-term task of implementation through education and enforcement that could eventually lead to judicial independence. END COMMENT. MILES