« The convention was ratified by the parliament and therefore cannot be annulled by a presidential decree, the prosecutor has stated » says Bianet English.
Turkey’s top administrative court yesterday (April 28) heard 10 cases filed against the country’s exit from the İstanbul Convention, a Council of Europe treaty for combating violence against women.
Submitting its opinion, the prosecutor’s office stated that withdrawing from the convention by a presidential decision was unlawful as it was ratified by the parliament.
The parliament had not annulled the law regarding the ratification of the convention and had not passed a new law regarding the termination of the convention, thus, the president’s action was not lawful as per the principle of parallelism of authority and proceedings, the prosecutor’s office concluded.
President Recep Tayyip Erdoğan issued a decree on March 21, 2021 for the country’s withdrawal from the convention. Women’s groups have protested the decision and taken legal action against it.
Ahead of yesterday’s hearing, police did not allow some women to enter the Council of State building, battering and using tear gas against them.
The hearing was heard at the Council’s 550-person conference hall, with the attendance of hundreds of lawyers and women’s rights defenders from all across the country.
« A historical case »
Attorney Şenal Sarıhan, the chair of the October 29 Women’s Association, took the floor first, saying that « this is a historical case. »
« I am a long-time lawyer, but no hearing was like this. You should see the women sitting here standing. You should hear them all screaming. You should see them saying, ‘This law is of vital importance.’
« In 2021, 280 women were murdered. In two months, 90 women were murdered. What we are protecting is our right to life. If we can’t protect our right to life, the other rights have no value.
« Please, give a decision of annulment and don’t delay it too long. Because four women are murdered every day. »
Oya Aydın Göktaş, an attorney with the association, noted that the case was not about deciding whether the withdrawal from the convention was appropriate but whether it was in accordance with the Constitution.
« Our voice was heard from all over the world. No international convention has reached this many people. We have a slogan explaining this convention: ‘The İstanbul Convention is ours, we are not giving up on it.’ Because the convention was born in this land. »
Women were battered by the police
While Göktaş was speaking, other lawyers interrupted her, saying that women outside the hall were being battered by the police and they should be let in.
« If we let everyone in, the hall will collapse, » the presiding judge responded.
After women lawyers began to get out to « bring our friends here, » the presiding judge agreed to let in representatives from 50 associations. All women waiting outside entered the hall, women lawyers said.
Why it is against the Constitution
Continuing her statement, Göktaş said the Constitution does not authorize the president to withdraw from an international convention and does not specify how the country should pull out of a convention.
« However, there are very fundamental premises. One of the most important of them is article 90 of the Constitution. There are two important points in this article for our case.
« First, the Constitution distinguishes conventions on fundamental rights and freedoms from others. It states that it will not be claimed that they are unconstitutional. And the İstanbul Convention is a very important human rights treaty.
« The second point is that an international convention came into force in accordance with the procedures and it has the power of law. How can we say that the executive organ is authorized to annul a law? No one can exercise a power not arising from the Constitution. »
The president’s decree also violated article 13 of the Constitution about the restriction of fundamental rights and freedoms, the lawyer said.
She further noted that Law No. 6284 is still in effect and directly refers to the convention.
« The president’s decision also changed Law No. 6284. This is unconstitutional. I sincerely believe that today your delegation will decide that the president’s decision alone is a baseless usurpation of authority. »
Erinç Sağkan, the chair of the Union of Bar Associations of Turkey (TBB), gave a statement as part of the case filed by the Ankara Bar Association.
He also pointed out that the president’s decree was against the Constitution.
« If the decision to withdraw from the İstanbul Convention is accepted, it means we can withdraw from the European Convention on Human Rights by an overnight decision by the president.
« Even if it is not thought to be null, it should be considered that it is unconstitutional. »
The prosecutor’s opinion
Announcing its opinion after the statements of the lawyers, the prosecution stated that the president’s decree was not lawful and should be annulled.
The women greeted the decision with applause. The case was adjourned.
Bianet English, April 29, 2022