Why is the Withdrawal from the Istanbul Convention Important? Is There No Law Left to Protect Women in Turkey?

With the Presidential Decree No. 3718 (“Withdrawal Decision” / “Decision”) published in the Official Gazette on 20/03/2021, it was decided to annul the Council of Europe Convention on Prevention and Combating Violence Against Women and Domestic Violence, also known as the Istanbul Convention. Following the publication of the Withdrawal Decision, the main questions that came to mind were as follows:

  • Was the Decision taken in accordance with Turkish law? Does the President really have the power to make this decision? Is the decision legally valid?
  • If the Decision is not in accordance with the law, is the Istanbul Convention still in force?
  • If the Decision is valid and in force, are women no longer protected by any law? Is violence against women justified?

Let’s start with the first question:

  • Was the Decision taken in accordance with Turkish law? Does the President really have the power to make this decision? Is the decision legally valid?

Article 3 of the Presidential Decree on the Procedures and Principles Regarding the Ratification of International Treaties (“Decree”) No. 9, which is the basis of the Decision of Withdrawal, stipulates the provision “Ratification of international treaties … suspension of the implementation of the provisions of the international treaties and termination of them shall be done by the decision of the President”. Looking at this article, we can see that the President is indeed empowered (actually self-empowered) to take this decision. But, is this Decree provision compatible with the Constitution in the first place? The answer is no. On the contrary, both Article 3 of this Decree and the Decision of Withdrawal are clearly against Article 104/17 of the Constitution, which is:

The President can issue a Presidential decree on issues related to executive power. Fundamental rights, personal rights, and duties included in the first and second parts of the second part of the Constitution, as well as the political rights and duties included in the fourth part, cannot be regulated by Presidential decree. Presidential decrees cannot be issued on matters that are exclusively regulated by law in the Constitution. Presidential decrees cannot be issued on matters clearly regulated in the law. If there are different provisions in the laws with the Presidential decree, the provisions of the law are applied.

If we look at the details:

  • “The President can issue a Presidential decree on issues related to executive power.” However, a decision to withdraw from an international convention is essentially and primarily a decision within legislative power. In order for international conventions to enter into force in domestic law, a decision must be taken by the Turkish Grand National Assembly to “approve the ratification with a law”. Only then, the international convention shall be ratified by the President. As a matter of fact, the Istanbul Convention was put into effect in this very procedure. The repeal of a law enacted in this procedure in a completely different manner is contrary to the principle of parallelism in authority and procedure.
  • “Presidential decrees cannot be issued on matters clearly regulated in the law. If there are different provisions in the laws with the Presidential decree, the provisions of the law are applied.” It should be noted that the power to “ratify” international conventions given to the President by Articles 2 and 3 of Decree No. 9 is also in direct contradiction with the Constitution. Although there was only an application to the Constitutional Court for the annulment of Articles 4 / 1-2 and 6 of Decree No. 9, and Articles 2 and 3 were left free from Constitutional judicial review, Article 90 of the Constitution was not repealed and it is still in force. In this case, Article 90 should be applied with priority.
  • “Fundamental rights, personal rights and duties included in the first and second parts of the second part of the Constitution, as well as the political rights and duties included in the fourth part, cannot be regulated by Presidential decree. Presidential decrees cannot be issued on matters that are exclusively regulated by law in the Constitution.” Although the provision explicitly includes the term “Presidential decree”, there is no doubt that this rule automatically covers “Presidential decisions”. In terms of the rights and obligations it contains, the Istanbul Convention directly concerns individual rights, in particular the rights to life and personal immunity. Therefore, any Presidential decree or decision that has a direct effect on these rights cannot be deemed valid.

Consequently, neither the Withdrawal Order nor the base Decree No. 9 are legal. The President has exceeded his power.

  • If the Decision is not in accordance with the law, is the Istanbul Convention still in force?

Presidential decisions are deemed administrative acts, and therefore the judicial review shall be made by the Council of State. Unless there is a decision to “stay of execution” made by the Council of State following an application to be made in due time, the Istanbul Convention is not in force.

  • If the Decision is valid and in force, are women no longer protected by any law? Is violence against women justified?

No, violence against women is still illegal and constitutes a crime under the European Convention on Human Rights, the Constitution, the Turkish Penal Code, and Law No. 6284 on the Protection of the Family and the Prevention of Violence Against Women. However, this is not enough to claim that the Withdrawal Decision did not change anything. As a matter of fact, while the laws in force are not implemented effectively enough, withdrawing from the most essential international convention related to the issue has shaped the perspective of the society towards women – once again – in a negative way. Unfortunately, the natural consequence of this will be increased violence against women.

 


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