Tajikistan (2018)

In the legislation of Tajikistan, there is no special law or policy, which regulates the issues of resettlement and/or land acquisition or expropriation of rights to land and immovable property for state or public needs. Moreover, there is no separate law that completely provides norms and mechanisms for the determination of the full and fair, market value of land. The key legislative acts regulating land management relations and the ownership rights to immovable properties in the Republic of Tajikistan are the following:

· Constitution of the Republic of Tajikistan (1994, as amended in 2003)

· Land Code (amended in 2012)

· Land Code (amended in 2008)

· Civil Code (amended in 2007)

· Regulation “about compensation of losses to the land users and losses of agricultural products” (approved by the Decree of Government of Republic of Tajikistan, 2000. № 515)5

The Constitution of the Republic of Tajikistan, Land Code and the Civil Code of the Republic of Tajikistan are the fundamental laws on which the legislation is based.

Types of land ownership and land use rights allocation

All land is owned by the Republic of Tajikistan, which is responsible for its effective use. Several tenure options for agricultural land are defined by the Land Code. There are primary use rights and secondary use rights. Primary use rights include the following:

· Perpetual use which has no fixed term. It is granted to legal entities such as state and cooperative agricultural enterprises, public and religious organizations and charities, industrial and transportation needs, public enterprises, defence and joint ventures that include foreign entities.

· Limited or fixed-term use may be granted to legal or physical persons for either a short-term (up to 3 years) or long-term (3 to 20 years).

· Life-long inheritable tenure which may be assigned to physical persons or collectives. Physical persons must re-register the right in the case of inheritance. This right applies to land-shares used to organize a Dekhan farm, as well as household (garden) plots.

The only secondary use-right recognized under the Land Code is the right to lease. According to the Code, primary rights holders may lease out their plots for a term not exceeding 20 years. The land is used in accordance with the state-established land-use standards. The right to use land may be terminated for various reasons such as termination of activities by the land user, non-use for two years and use of the land differing from the use established in the use-rights document. (Land Code Article 37)

Dekhan land is the result of the splitting up of large state owned farm enterprises, known as kolkhoz and Sovkhoz farms, which were established throughout much of the former Soviet Union. Sovkhoz farms were run by the state, while kolkhoz farms were a form of co-operative farm, run by a committee of members approved by the state. The Agrarian Reform Program in Tajikistan was adopted for the period of 2012-2020. Creation of Dehkan farms is one of the priority areas of land reform. The basis for creating Dehkan farm in the Republic of Tajikistan is defined by the Law “On Dehkan farms”6, №48 of 10 May 2002. It resulted in the creation of 31 Dehkan farms in 1992 comprising300 hectares of land. In 2003, there were 16,433 registered Dehkan‟s farms comprising 240,100 hectares7.

In Dekhan farms, the land remains state property (which cannot be bought or sold), but farmers are granted inheritable land use rights which give complete legal freedom to landholders to manage the land as they desire. The state collects taxes and can repossess the land if it believes the land is not being managed properly. There are three types of Dekhan land: individual (the land use certificate is held by an individual), family (the certificate is jointly held) and collective (the certificate details common property shareholders).

A collective Dehkan consists of two or more unrelated families, producing and marketing jointly. Dekhan farm ―associations, or ―associative Dekhan farms, operate in a similar manner to collective Dekhans, although the families involved technically have their own Dekhans and work together cooperatively. Both family and collective Dehkans operate by appointing a head who officially holds the farm’s land registration certificate and legally represents the interests of the farm (Duncan 2000; GOT 2008; ARD 2003; Robinson et al. 2009; GOT 2009a).

Presidential land is similar to Dekhan land. It was allocated in small plots to private households in the late 1990s by Presidential Decree. The essential difference between Dekhan and Presidential land is that no land-use rights certificate is required for the latter land plots (they are registered at the jamoat level per household).

Reserve Fund land usually consists of unused land. It also includes land plots for which land use rights have been abandoned. State reserve land is at the disposal of the district administrations and is rented out or distributed for individual agricultural cultivation purposes. Article 100 of the Land Code states that “State land stock” is reserved for the agricultural, industrial, transport and other needs of the national economy.

Supported Farms land includes land provided to different government institutions as assistance to their members and employees. The land is given to employees who did not get any land under other government schemes.

Tajikistan Constitution, Law/regulation on Land Acquisition, Resettlement and Compensation.

The Constitution of the Republic of Tajikistan is the main legal document which guarantees citizen‟s rights. Article 13 states that land, mineral resources, water, airspace, animal and vegetable kingdoms, [i.e. flora and fauna], and other natural resources are owned by the state, and the state guarantees their effective use in the interests of the people. Furthermore, Article 12 states that the economy of Tajikistan is based on various forms of ownership and the state will guarantee freedom of economic activity, entrepreneurship, equality of rights, and the protection of all forms of ownership, including private ownership.

The legal basis for state acquisition of private property for public works is outlined in Article 32 which states “the property of an individual is taken away only on the basis of the law, with the consent of the owner and to meet the requirements of the state and society, and with the state paying full compensation.”

Provisions regulated by the Land Code

In August 2012 amendments to the Land Code that enable legal sales and lease transactions for land use rights were approved.8 The Land Code also includes changes to the provisions related to land acquisition.9

The revocation/allotment of lands and resettlement envisages compensation for losses incurred by land users or those with other registered rights to the land when the land plot is revoked for state and public needs.

The state may revoke land plots for state and public needs from land users after:

· Allocating a land plot of equal value;

· Constructing housing and other buildings with the same purpose and value, in a new location for the natural persons and legal entities to whom the land plot had been allocated, in accordance with established procedures;

· Fully compensating for all other losses, including lost profits, in accordance with the legislation of the Republic of Tajikistan.

Upon the revocation of land plots for state and public needs, all losses shall be calculated according to the market price, which shall be defined by taking into consideration the location of the land plot ,and compensation shall be paid to the persons/legal entity whose land has been taken away. Termination of the right to use a land plot, for state and public needs, can be carried out after allocation of an equal land plot and compensation of other expenses is provided by part one of the present article (L.C. Article 41; In the Republic of Tajikistan Law edition dated 1 August 2012, No. 891).

The procedure for the compensation of losses to land users and losses arising from the removal of land from circulation is regulated by Article 43 of the Land Code edition dated 1 August 2012, No. 891:

In the event of revocation of a land plot for state and public needs, compensation for losses to land users and others with registered rights to the land, and losses connected to the removal of land from circulation, shall be made by the natural/legal persons whose activity led to the revocation;
In the event of withdrawal of a land plot for state and public needs, the procedure for compensation of losses to land users and others with registered rights to the land, and losses connected to the removal of land from circulation, shall be defined by the Government of the Republic of Tajikistan (In RT Law edition dated 5 January 2008, No. 357).
Upon termination of the rights to a property, the property will be assessed based on its market value (Article 265 Civil Code).
Land users should be notified in writing about land revocation by the local executive government body no later than one year before the pending withdrawal of the land (Article 40. Land Code of the Republic of Tajikistan Law edition dated 1 August 2012 no. 891).
In the event that international agreements recognized by the Republic of Tajikistan establish other rules than those contained in the Land Code of the Republic of Tajikistan, the rules of the international agreement shall be applied (Article 105, LC of the RT edition dated 28 February 2004 No. 23).

The Land Code of 1997 is the core legal document related to land acquisition. It has been updated a few times and most recently in August 2012. Article 2 of the Land Code states that “land is an exclusive ownership of the State but the State guarantees its effective use in the interests of its citizens”. However, Articles 10-14, the Land Code outlines land title as being of long-term, short-term, and inherited land use entitlement. Article 14 of the LC of the RT also states that land users may lease land plots by agreement (In the Republic of Tajikistan Law addition dated 1 August 2012 No. 891).

Article 24 of the Land Code describes the allocation of land for non-agricultural purposes, and provides that when choosing a suitable location for such land uses, land not suitable for agriculture should be favoured. The same principle is stressed by Article 29, which discourages the use of high yielding agricultural land for non-agricultural use. However, Article 29 also allows for allocation, and appropriating of agricultural land for “other very important State objects”.

In accordance to Article 19 of the Land Code, the land right users may:

Execute civil-legal transactions (buying-selling, gift, exchange, mortgage and other) with allocated (acquired) use right to a land plot with a right to alienate it independently without interference of executive government bodies, except for provisions of present Code; (In the Republic of Tajikistan Law edition dated 1 August 2012 No. 891);
Lease the land plot;
Establish private (based on consent) servitude to a land plot; (In edition dated 1 August 2012 No. 891);
Mortgage the right to a land plot;
Receive compensation in the event of withdrawal of the right to use the land plot for state and public need in accordance with Article 41 – 43 of the present Code.

Compensation for land which belongs to the State but is allocated and essentially leased to users by each Hukumat, is divided between the Hukumat and the user according to the following proportion:

40 % to the Hukumat, which will no longer derive income from taxes and leases for the portion of the land being acquired
60% to the land user, who suffers a reduction in his/her income-generating asset.

The compensation received by the Hukumat is used for the management, construction, and maintenance of local infrastructure.

Gaps with EBRD PR 5 requirements:

1. Resettlement planning and implementation: no requirements under national legislation to prepare baseline assessment and RAP

2. Compensation for informal owners and occupants of property: informal PAPs (owners and occupants) without right to use are not entitled to any compensation for land and non-land assets

3. Provision of compensation at full replacement cost: a) permanent loss of land: replacement land but also cash compensation (same in principle); b) loss of structures: cash compensation for lost structures at market value with depreciation or value of salvaged materials sometimes included in the calculation (same in principle but not in application); c) business losses: compensation in cash at market value for local businesses but the methodology is not specified (differences in principle for non-legal businesses)