Civil Code of Turkmenistan (1998, as amended 2003) (excerpts related to freedom of association) (English)
CIVIL CODE OF TURKMENISTAN BY SAPARMURAT TURKMENBASHI
(Mejlis Gazette of Turkmenistan, 1998, #2, p. 39)
(including amendments in accordance with the law of Turkmenistan as of October 21, 2003)
PART I
GENERAL PROVISIONS
SECTION II. PERSONS
CHAPTER 2. LEGAL PERSONS
Paragraph 1. General Provisions
Article 48. Definition of a legal person
1. A legal person shall be an organization holding title to its own assets and bearing responsibility for its liabilities therewith; it may, on its own behalf, acquire and exercise property and personal non-property rights, incur obligations and act as a respondent or a claimant in court.
2. The state shall take part in civil legal relations as a legal person. The authority of the state shall be manifested through its bodies.
Legal persons formed by the state shall participate in civil legal relations in accordance with the established procedure.
Article 49. Legal capacity of legal persons
1. A legal person not engaged in entrepreneurial activities shall have the right to carry out activities consistent with the purposes of and envisioned in its constitutional documents.
A legal person engaged in entrepreneurial activities shall have the right to carry out any activities not prohibited by law.
Some types of activities which are determined by law shall be carried out by legal persons only on the basis of a special permit (license). The right to carry out such activities by a legal person shall arise from the moment of obtaining such permit (license).
2. Legal capacity of legal persons shall arise from the moment of their registration and be terminated from the moment their liquidation is registered.
3. A legal person may be restricted in its rights only in cases and in accordance with the established legal procedure.
Article 50. Legal persons engaged in entrepreneurial activities
Legal persons engaged in entrepreneurial activities shall be those whose purpose is entrepreneurial (commercial) activities aimed at generating profit. Legal persons engaged in entrepreneurial activities shall be established in accordance with the law.
Article 51. Legal persons not engaged in entrepreneurial activities
1. Legal persons not engaged in entrepreneurial activities shall be those whose purpose is not entrepreneurial (commercial) activities aimed at generating profit. Entrepreneurial activities that have an ancillary character shall not change the nature of a legal person not engaged in entrepreneurial activities. Legal persons not engaged in entrepreneurial activities shall be established by means of unions (associations) and foundations.
2. A legal person shall be considered a union (association) if several persons share a common goal, and the existence of this union does not depend on changes in its composition. At least five members shall be required to form a union (association).
3. A legal person shall be considered a foundation when one or several founders transfer special property to be owned by an independent entity which does not have any members for the purpose of achieving a common goal of social value.
Article 52. State registration of legal persons
1. A legal person shall be subject to state registration as established in the law. The public registration data, including a corporate name for commercial organizations, shall be entered in the Unified State Register of Legal Persons open to the public.
A refusal of the state registration, as well as an attempt to evade registration, may be appealed against in court.
2. A legal person shall be considered as formed from the moment of its state registration.
Article 53. Constitutional documents of legal persons
1. A legal person shall act on the basis of its constitutional documents.
The foundation agreement of a legal person shall be concluded, and its founding charter approved, by its founders (participants).
A legal person formed in accordance with this Code by one founder shall act on the basis of the charter approved by the founder.
2. The charter and other constitutional documents of a legal person shall determine its name, location, and the procedure for managing its activities, as well as other information provided for in the law on legal persons of the appropriate type.
In their foundation agreement, the parties (founders) shall determine a procedure for the establishment and activities of a legal person, conditions for transferring their property thereto and participation in its activities. The agreement shall also define the conditions and procedure for profit/loss distribution among the participants, managing the activities of the legal person, and withdrawal of its founders (participants). If so agreed by the founders, the foundation agreement may include other conditions.
3. Changes in constitutional documents shall come into effect for the third parties from the moment of state registration, and in cases prescribed by the law, from the moment of notifying the state registration body about such changes. However, legal persons and their founders (participants) shall not be entitled to refer to the absence of registration of such changes in their relations with the third parties that acted on the basis of such changes.
Article 54. Bodies of a legal person
1. A legal person shall acquire civil rights and undertake civil obligations through its bodies acting in compliance with the law and constitutional documents. The procedure for appointing and electing a legal person’s bodies shall be determined by law and constitutional documents.
2. A person acting on behalf of a legal person on the basis of the law or constitutional documents shall do so in the interest of the legal person presented by them in good faith and in a reasonable manner.
Article 55. Legal person’s name and place of location
1. A legal person shall have its own name containing a reference to its form of incorporation.
2. A legal person’s place of location shall be the place where its administration is located. A legal person may have only one place of location (legal address). Any other place of location shall be considered as a place where its branches are located.
3. A legal person’s name and place of location shall be stated in its constitutional documents.
4. A legal person which is a commercial organization shall have its corporate name.
A legal person whose corporate name is registered in accordance with the established procedure shall enjoy the exclusive right to use it.
The procedure for the registration and use of corporate names shall be determined by the law in accordance with this Code.
A person using someone else’s corporate name illegally shall, if demanded by a corporate name’s right holder, terminate its use and pay indemnity for losses caused.
Article 56. Representative offices and branches
1. A representative office shall be defined as a separate subdivision of a legal entity located outside its place of location, carrying out the protection and representation of its interests and making transactions and other legal actions on behalf thereof.
2. A branch shall be defined as a separate subdivision of a legal person located outside its place of location, carrying out all or some of its functions, including the representation functions.
3. Representative offices and branches shall not be viewed as legal entities. They shall be granted property by the legal person that created them and act on the basis of provisions approved by them.
Heads of representative offices and branches shall be appointed by the legal person and act based on its power of attorney.
Paragraph 2. GENERAL NORMS ON PUBLIC ASSOCIATIONS AND FOUNDATIONS
Article 57. Registration of public associations and foundations
1. Public associations and foundations shall commence their activities as legal entities from the moment of their registration. Public associations and foundations shall be registered in the Ministry of Justice. A procedure for the registration of public associations pursuing political or other publicly important goals (political parties, religious organizations, trade unions, etc) shall be prescribed by the special laws.
2. The right to request registration shall take place if the founding charter is compliant with the law, and the goals of the legal entity presented for registration are consistent with the applicable law, recognized moral norms, and constitutional and legal principles of Turkmenistan. The purpose of property belonging to foundations shall be consistent with the goals set.
3. An application request and a founding charter signed by all founders and members shall be required for registration.
4. The Ministry of Justice shall make a decision on registration within one month after submission of the application request.
5. A refusal of registration shall be substantiated, providing for the opportunity and procedure for appeal thereof. A refusal of registration can be appealed against in court.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Article 58. Charter of public associations and foundations
1. The organization and structure of public associations and foundations shall be regulated by a charter.
2. The charter shall lay down:
a) purpose of activities;
b) name;
c) place of location (legal address);
d) procedure for liquidation and distribution of property;
e) names of all Board members, their place and date of birth, place of residence, procedure for scheduling Board’s meetings and making decisions at such meetings; and
f) authority of public association (foundation) members.
3. The charter may also lay down:
а) functions of other management and control bodies;
b) authority of meetings by public association members.
4. The charter of foundations shall include, along with what is described in para. 2 of this article, the following:
а) minimum amount and type of donations;
b) references to how donations are used.
5. The charter shall be certified by the notary.
Article 59. Registration data
1. Registration shall include the following data: name of the legal person and its place of location; purpose of activities; date of signing the charter; identity of founders; identity of Board members and possible limitations of their representative authority.
2. Registration data shall be subject to public disclosure.
3. Anyone shall be entitled to become familiar with entries in the Register and ask for written extracts.
Article 60. Registration of changes
Changes of data which are subject to registration shall be submitted immediately to the Ministry of Justice, signed by the Board. They shall be entered in the register and publicized.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Article 61. State control over activities of public associations and foundations
1. State legal control over the activities of public associations and foundations shall be maintained by the Ministry of Justice.
2. The Ministry of Justice shall annul registration if a public association or foundation switched mostly to entrepreneurial activities, or if the goals set forth in its charter are impossible to achieve.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Article 62. Management and representation
1. Management shall be vested in members of the Board, and in some cases, in special representatives. This shall be their duty at the same time.
2. Management limits shall be determined in the charter in accordance with the goals of a public association or foundation.
3. The charter may provide for the right of one person to manage all activities at their sole discretion, or determine joint management by two or several people.
4. The charter may provide for the list of actions that require approval of other control bodies before they can be implemented.
Article 63. Competence of the Managing Board in relations with the third parties
1. The Managing Board shall represent a public association or foundation in any relations with the third parties. The charter shall contain provisions determining whether the persons authorized to represent a public association or foundation will act at their sole discretion, jointly with each one of them having equal powers, or all together.
2. The charter may limit the authority of representation. These limitations shall hold true for the third parties only in those cases when they are registered in the register, except for cases when the third parties knew about such limitations.
3. The charter may provide for the appointment of a special representative to represent a public association or foundation. The charter shall regulate the authority limits of such representation and its type, which shall also be subject to registration.
Article 64. Responsibility
1. A public association and foundation shall assume responsibility for any damage caused to the third parties as a result of such actions on the part of the Board members or other representatives while discharging their functions which entail an obligation to make good this damage.
2. Persons entitled to representation shall act in good faith. They shall be held liable for any violation of this obligation in front of the public association or foundation for any damage caused. A refusal to indemnify for the damage shall be invalidated if such indemnity is required to satisfy the claims of the third parties.
3. Members of a public association or foundation shall not be responsible for any liabilities thereof, nor shall a public association or foundation be responsible for the liabilities of its members.
Article 65. Termination and liquidation of a public association or foundation
1. A public association and foundation shall be liquidated or terminate their activities in cases prescribed in their charter as a result of achieving their purported goal, inability to achieve their goal, or annulment of registration by the Ministry of Justice.
2. In case of liquidation, all current activities shall be completed, requirements shall be established, the remaining assets shall be evaluated in monetary terms, creditors shall be satisfied, and the remaining property shall be distributed among those entitled to it.
3. Those entitled to take over the property may be determined by the charter. In case there is no such provision, the Ministry of Justice shall, at its sole discretion, transfer the remaining assets to one or several public association or foundations pursuing the same or a similar goal as the liquidated association or foundation. In case there are no such associations, a decision can be made to transfer this property to a charity organization or the state.
4. Information on liquidation shall be subject to public disclosure. Distribution of assets shall be allowed no sooner than one year after this information is made public.
5. Liquidation shall be carried out by the Managing Board. In case of special circumstances, the Ministry of Justice may appoint other liquidating agents. Liquidating agents shall be held liable similar to Board members.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Paragraph 3. Special norms on public associations
Article 66. Managing Board
1. The Managing Board of a public association shall be elected by the general meeting of its members for four years, unless otherwise stated in the charter. The Managing Board shall retain its authority after this period before a new board is elected.
2. A decision on electing the Managing Board may be cancelled any time. In accordance with the charter, such cancellation may be due to serious circumstances.
Article 67. General meeting
1. The general meeting of public association’s members shall be convened by its Managing Board. It shall be convened at least once a year in cases stipulated by the charter, or when it is required so in accordance with the interests of a public association. Furthermore, a meeting shall be convened if this is required by one-tenth of all members in writing and providing a meeting’s agenda.
2. The members’ meeting shall be convened by submitting a written message to all members or by making a publication in the public association’s bulletin no later than two weeks prior to the meeting.
3. The members’ meeting shall make decisions with regard to all issues which do not fall under competence of the Managing Board. A decision shall be valid only in case its subject matter was announced while convening the meeting.
4. A decision shall be reached by a majority of votes from those present at the meeting, whereas a decision on amending the charter shall be reached by a majority of three-quarters of votes. To change the goal of a public association, a majority of four-fifths of member votes shall be required. Members who are not present at the meeting may take part in voting in a written form.
Article 68. Commissions
The members’ meeting may, in accordance with the charter, establish commissions which can carry out the functions of a meeting in between the members’ meetings, in particular for the purpose of exercising control over the activities of a public association. Only public association’s members shall be entitled to membership in such commissions.
Article 69. Ad-hoc bodies
The members’ meeting may, for counseling purposes in the course of public association’s task implementation, establish ad-hoc bodies (advisory council, curatorium, administrative council) provided it is stipulated by the charter. Non-members of a public association may also have the right to participate in such bodies.
Article 70. Membership in a public association
1. Members shall be allowed into a public association by the Managing Board on the basis of a written application.
2. Each member shall have the right to withdraw from a public association. The charter may provide for a specific withdrawal period which shall not exceed two years. Withdrawing from a public association on the basis of serious circumstances shall not be limited by the specific withdrawal period.
3. Membership shall not be transferred to other persons and shall not be inheritable, unless otherwise stated in the charter.
4. In case of substantial grounds, the general members’ meeting may expel a member from a public association. A member who was expelled shall have the right to appeal against this decision in court.
5. In case a public association, while implementing social, cultural or other tasks, carries out important functions for someone willing to join it, this person shall have the right to insist that he/she be accepted as a member, unless it is inconsistent with the major principles of this association.
Paragraph 4. Special norms on foundations
Article 71. Foundations for destinators
The purpose of a foundation may also be a support of specific persons or specifically defined circles. All persons having the right to a share of a foundation’s property (destinators) may, if agreed by all members of the Board, abolish their foundation or change its goal, provided it is supported by the Ministry of Justice. The remaining property shall be distributed among destinators.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Article 72. Liability to ensure transfer of assets to a foundation
1. A founder (founders) shall assume liability for transferring assets to a foundation in the amount necessary for achieving the foundation’s goals, which shall be done through a document on the establishment of a foundation certified by a notary. If there are not enough assets, a permission to establish a foundation shall be refused.
2. A refusal to transfer property shall be allowed any time before registration. Within one month after registration, property shall be transferred in full amount, or otherwise registration shall be invalidated.
3. Foundation’s goals shall be financed by income from property, unless otherwise stated in the charter. In case this income is not sufficient during a certain period of time, the activities of a foundation shall be reduced appropriately or suspended, whereas the income shall be added to property.
4. An annual report shall be produced on the state of property in accordance with the established form.
Article 73. Supervisory body
1. The charter may, for the purpose of appointing, recalling and controlling the Managing Board and special representatives, provide for the establishment of a supervisory body (curatorium) whose members shall be invited by founders of a foundation. In case of death of founders, the supervisory body may include new members (co-optation) by the decision of destinators or in the manner prescribed in the charter.
2. In all other cases, the Ministry of Justice shall make sure that the management of a foundation is carried out in compliance with the law and the charter. The Ministry of Justice shall have the right to receive information about the activities of a foundation or inspect its documentation at any time.
3. The supervisory body may hold up the decisions and activities of the Managing Board, declare them as invalid or insist that they be annulled provided that they are not consistent with the law or with the charter.
4. The supervisory body shall make sure that the Managing Board and other bodies are appointed in compliance with the charter. If the charter does not regulate these relations sufficiently, this body may provide additional instructions.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)
Article 74. Changing the purpose of a foundation
In case the achievement of goals is not possible without destinators, or in case there are other grounds for liquidating a foundation, the Ministry of Justice may, if appropriate provisions are not provided in the charter, insist that the goal be changed or the foundation in question be merged with other foundations so that similarity with its initial goal is preserved, rather than it be liquidated. In case at least one founder is alive, his/her consent shall be required.
(As amended in the Law of October 21, 2003, Mejlis Gazette of Turkmenistan, #4, p. 36)