RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF TURKMENISTAN

of October 2, 1997 No. 12

About practice of application by courts of the legislation regulating establishment of abnormalities of entries in books of acts of civil status

Having discussed results of generalization of court practice of application by courts of the legislation regulating establishment of abnormalities of entries in books of acts of civil status the Plenum of the Supreme Court of Turkmenistan notes that the correct and timely consideration by courts of statements for establishment of abnormalities of entries in books of acts of civil status is important for protection of the rights and the interests of citizens, and also interests of the state protected by the law.

Courts generally correctly resolve cases of this category. At the same time, on some cases by courts mistakes in application of the legislation regulating procedure for establishment of abnormalities of entries in books of acts of civil status are made the question of establishment of abnormality of record based on extremely limited proofs is resolved, there is no careful analysis available in materials, violations of the procedural law are allowed, and also cases of the wrong formulation of substantive provisions of the decision take place.

Any case of this category was not considered in cassation procedure owing to what the errors made by courts were not timely found and corrected. For the purpose of strict observance by courts of legality and remedial action by hearing of cases of this category Plenum of the Supreme Court of Turkmenistan

Decides:

1. Explain to courts that applications for establishment of abnormality of entries in books of civil status are considered if there are primary or recovered records, and also in cases when bodies of the REGISTRY OFFICE to these records make changes in connection with adoption (adoption), paternity proof, change of surname, name, middle name, change of surname of the minor child.

2. Courts shall consider cases on establishment of abnormalities of entries in books of civil status not according to the procedure of the factual determination having legal value, and by rules of the Art. of Art. 270 - 272 GPK of Turkmenistan, the abnormalities of entries in books of civil status determining procedure for establishment, considering at the same time that consideration of the REGISTRY OFFICE by bodies and refusal in allowance of the application of the interested person about introduction change in record shall precede appeal to the court.

It must be kept in mind at the same time that according to the current legislation in case of refusal in modification, amendments and corrections in entry in books of acts of civil status bodies of the REGISTRY OFFICE shall constitute the motivated conclusion which is subject to approval by the order of hyakimlik.

3. the statement of the interested person for establishment of abnormality of entry in books of civil status is filed a lawsuit at the place of residence of the applicant.

4. Draw the attention of courts to importance of thorough training of cases to legal proceedings during which it is necessary to establish whether the disputed record is available, to determine the group of people, participating in case and to resolve other questions for the correct and timely permission of case.

It is necessary to consider that in case of establishment of abnormality of the birth record due to the need of appointment to the applicant of pension, on case except body of the REGISTRY OFFICE also the department of social security shall be attracted.

5. The statement which is filed a lawsuit shall contain data: to what entry in books of acts of civil status and what corrections or changes the applicant asks to make; by what proofs abnormality of record is confirmed. The copy of the appropriate certificate, the conclusion of body of the REGISTRY OFFICE about refusal in change or correction of record and other documents relating to the matter join the statement.

6. By preparation of case for legal proceedings the judge requests necessary written proofs if the applicant has no opportunity to provide them, including from bodies of the REGISTRY OFFICE.

If establishment of abnormality concerns the recovered record, for review materials based on which record was recovered can be requested.

7. Courts should mean that determination of age in case of recovery of the lost birth records is made by bodies of the REGISTRY OFFICE, and availability or lack of the bases to establishment of abnormality about year of birth in the recovered birth record judicially can be confirmed.

8. If in case of adoption of the statement to production of court or consideration according to the procedure of special proceeding of case on establishment of abnormality of entry in the book of acts of civil status it is found out that there is dispute on the right, to subordinated courts (about inheritance, the property right, etc.), respectively the judge or court refuses adoption of the statement, leaves the statement without consideration and explains to interested persons that they have the right to make the claim in accordance with general practice.

9. The court solves question of establishment of abnormality of the data on age specified in the recovered birth statement depending on written and other proofs, with reliability of the data on age, testimonial of abnormality, specified in record.

10. The question of cancellation of primary records of acts of civil status is resolved by court, except for cancellations of record about annulment of marriage, with case of appearance of the spouse acknowledged is unknown absent which is made by bodies of the REGISTRY OFFICE based on the judgment passed and procedure for the Art. 259 GPK of Turkmenistan. The recovered or repeatedly constituted records in case primary records are found, are cancelled by court or body of the REGISTRY OFFICE according to the procedure, established by the current legislation. If cancellation of records is connected with dispute on the right - case is considered by court procedure for claim production.

11. Courts need to consider that bodies of the REGISTRY OFFICE according to the judgment make changes to entry in the book of acts of civil status and based on the made changes grants the new certificate. Therefore courts in substantive provisions of the judgment shall specify accurately what record is wrong (by what body of the REGISTRY OFFICE it is made, number and date of record concerning what persons it is constituted) what changes or corrections it is necessary to make to it.

12. Judicial board on civil cases of the Supreme Court of Turkmenistan, velayatsky courts and the Ashgabat city court for the purpose of the prevention, timely identification and elimination of the mistakes made by courts periodically to study and generalize court practice on hearing of cases about establishment of abnormalities of entries in books of civil status and to speed up work on rendering the practical help to subordinate courts.

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