Download As a conclusion, international law with conventions and judgments

The Infuence of the International Law on Turkish Constitution
and Turkish Constitutional Court’s Case-Law in the Construction
of a Legal Landscape in Turkey
Asst. Prof. Sami Doğru, Vice Dean of Law Faculty
Çağ University, MERSIN/TURKEY
Introduction
There is a growing influence of international law on national
judiciaries including constitutions. Broadly speaking, this is part of a
larger trend reflecting the increasing significance of international law
in several spheres.
So, no constitution today is an island itself. Internattional
conventions, customs and judgements with international institutions
and standardization of some of the principles of international law have
growing impacts on municiple law including constitution.
In this context, international conventions affects the Turkish
constitutional system through two distinct paths. First, some of the
constitutional provisions are rooted in the conventions. Second, the
Convention and the European Court of Human Rights guide the
interpretation of domestic law in courts.
I will give short information realting to Turkish Constitutional System
in history and today than examine first the direct influence of the
international conventions on the Turkish Constitution and place of the
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conventions within Turkish legal system. Second, I examine the
Turkish Constitutional Court’s approach on international human rights
laws and its influence to the Turkish law with its recent decisions
regarding to individual applications.
1. Turkish Constitutional System in History and Today
In Turkish history, there are 5 Constitutions and none of them was
made by a freely chosen and broadly representative constituent
assembly through inter-party negotiations and compromises. On the
contrary, state elites played a predominant role in the making of all
these constitutions with little input from civil society. One of them is
in the Ottoman Empire period, the rest of them in Turkish Republic
Period.
a. The Ottoman Period
Turkey has a prominent place among today’s developing countries
by the length of its experience, albeit an interrupted one, with
constitutional goverment. The first important step along the road to
the rule of law was the promulgation of the Ottoman Constitution in
1876. The basic concept in the 1876 Constitution is that, although
somewhat restrictive in the exercise of powers, it nevertheless, for the
first time, recognized a parliamentary system. This constitution has
provisions covering basic rights and privileges, the independence of
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courts and the safety of judges, among other aspects. The restored
Constitution of 1876 was subtantially amended in 1909 to increase the
powers of the legislature and to restrict those of the Sultan. Thus, a
constitutional system finally came into being, more or less similar to
the parliamentary monarchies of Western Europe. Howewer, this
liberal era did not last long because of the World War I.
b. Turkish Republic Period
With the defeat of the Ottoman Empire in World War I, the
Ottoman government in Istanbul collapsed and a new governmental
structure was developed in Anatolia by the nationalists resisting the
occupation.
This era of ‘National Liberation’ is a most interesting period in
Turkey’s constitutional history and is full of constitutional
innovations. Mustafa Kemal called for the election of a new assembly
‘with extraordinary powers’ to convene in Ankara. This body, which
congregated on April 23, 1920, and called the Turkish Grand
National Assembly (TGNA), held both legislative and executive
powers. TGNA enacted a Constitution in 1921. This was a short (23
articles) but very important document. But the Constitution of 1921
was not meant to be a constitution in the full sense of the world;
rather, it was a document dealing only with the most urgent
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constitutional problems of the moment. So, the Turkish Republic
clearly needed a new Constitution. Therefore, Grand National
Assembly adopted a new Constitution in 1924 retained most of the
basic principles of the 1921 Constitution, notably the principle of
national sovereignty. During this period authoritarian leadership of the
chief executives and strong party discipline reduced the Assembly to a
secondary role. Some overly authoritarian measures taken by the
government in the spring of 1960 created widespread unrest in the
country. Finally, on 27 May 1960, units of the Turkish armed forces
overthrew the government.
The 1961 Constitutions were products of military interventions.
However, the 1961 Constitution fully separated the judiciary from the
executive and the legislature, thereby clearly operating the separation
of powers principle. Turkish first "Constitutional Court" has been
established with the 1961 Constitution. The 1961 Constitution
remained in effect for 19 years. Towards the end of the 1970s, the
Turkish political system faced an increasingly serious crisis brought
about by political polarization, violence and terrorism. This instability
led to the military takeover of 12 September 1980. After the military
coup they created a 'National Security Council'. The prepared a draft
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constitution and made a referendum of November 7th 1982 produced
a 91.37 percent majority for the Constitution.
There is little doubt that the original text of the 1982 Constitution
contained severe defects, which rendered it hardly compatible with
universal democratic norms. However, the Constitution has been
amended 17 times, particularly since 1995 until 2010. Especially
amendments adopted in 1993, 1999, 2002, 2004 and 2010 led to
significant improvements in fundamental rights and liberties, political
rights, the rule of law.
In this period, the European Union membership process has had an
impact on Turkish domestic law including constitution. From 1999,
when Turkey became an official candidate country, to 2005, when
accession negotiations began, the Turkish parliament ratified nine
harmonization packages and amended around one-third of the original
text of Turkey’s 1982 Constitution and its Penal and Civil Codes.
Turkey has gone through a reform process not only in these legal texts
but also in the norms and practices of domestic and foreign politics.
Thus, looking at the amount of changes, it is possible to argue that
Turkey is increasingly being Europeanized.
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2. The Place of International Law in Turkish Law
State constitutions have traditionally included references to
international law and provide for the binding force of international law
within the domestic sphere and sometimes explicitly and sweepingly
recognize the primacy of international law over domestic law1. Four
factors account for the proliferation of constitutional references to
international law. First, the need to establish a liberal rule of law and
market economy. Second, the integration of states within the EU and
within other international organizations has progressed. This process
requires the member states to amend their domestic constitutions.
Third, new international institutions with far-reaching powers, such as
the ICC, have been created. Finally, the international community, or at
least its most powerful members, have been supervising regime
changes and have induced, accompanied, steered, or even installed
new state constitutions, such as the Constitutions of Cambodia (1993),
Bosnia and Herzegovina (1995), South Africa (1996), East Timor
(2002), Afghanistan (2004), Iraq (interim Constitution of 2004), or
Kosovo (2008)2.
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2
Anne Peters, s. 2.
Ibid.
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Similarly, Turkisch Constitution also referes ‘international law’,
‘international customs’ and ‘general principles of law’ in four
different articles (15, 16, 42, 90 and 92). These references came in to
force trough the amendmends of constitution in the last decade mainly
with the effect of international conventions including European
Convention on Human Rights minimizing the human rights violations.
Article 15(1) regulates the conditions of suspension exercise of
fundamental rights and freedoms under emergency regimes.
Suspension of the exercise of rights and freedoms and other measures
to be taken during emergency situations can not infringe state’s
obligations under international law. So, restrictions of fundemantal
rights and freedoms guaranteed in the Constitution should conform
with the international law all the time.
According to the Article 16 of the Constitution, “The fundamental
rights and freedoms of aliens may be restricted by law in a manner
consistent with international law”.
Another provision of the Constitution related to the international
law is Article 92(1). The provision states that, “The Power to authorise
the declaration of a state of war in cases deemed legitimate by
international law and except where required by international treaties to
which Turkey is a party or by the rules of international courtesy to
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send Turkish Armed Forces to foreign countries and to allow foreign
armed forces to be stationed in Turkey, is vested in the Turkish Grand
National Assembly.” That is to say, the Constitution limits the powers
of the Parliament in spesific matters with the international law
including customs.
Finally, the last paragraph of the Article 42, regulating the right to
education also stipulates to “international treaties”.
Accordingly, there are some elements in the Constitution for
application of principles of international law that the Turkish
Constitutional Court may use. However, one may claim, that without
aforementioned provisions, it might be possible to come to the same
conclusion through Art. 2 of the Constitution. According to the Art. 2,
“respecting human rights” and being “governed by rule of law” are the
characteristics of the Republic. Being respectful of the state to the
human rights implies to observe international human rights law,
especially the UN and the European Council systems. It is not possible
to ‘respect human rights’ ignoring international principles.
The Turkish Constitutional Court also should take into account
international law, because of the principle of ‘pacta sunt servanda.
None of the state bodies can act against the agreements and treaties
which are approved by the State and binding. So, the Turkish
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Constitutional Court should consider not only the Constitution but
also international human rights law when it reviews statutory norms.
When a norm conflict with a treaty which Turkey is a party of or an
international
customary
law,
the
Court
should
declare
it
unconstitutional concurrently, since it is contrary to the principle of
rule of law provided in Art. 2.
The 1982 Constitution frames the place of international treaties
in Art 90(5). The original version of the provision states that
“international agreements duly put into effect bear the force of law. No
appeal to the Constitutional Court shall be made regard to these
agreements, on the grounds that they are unconstitutional.” However,
the formulation of this provision raised some problematic until the
amendment of Article 90 of the Constitution in May 2004. The
amendment acknowledged the primacy of the European Convention
on Human Rights: “In the case of a conflict between international
agreements in the area of fundamental rights and freedoms duly put
into effect and the domestic laws due to the differences in provisions
of the same matter, the provisions of international agreement shall
prevail.” Before this amendment, the question of superiority between
international agreements and domestic laws was the subject of much
discussion among the academics and legal practitioners. But now the
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amendment made it clear that international human rights agreements
are superior over domestic laws.
On the other side, treaties that Turkey is a party to, e.g. the
European Convention on Human Rights and the European Court of
Human Rights decisions, are binding for Turkey. So if an international
human rights treaty conflicts with the Constitution, the Turkish
Constitutional Court may overcome the problem only with
interpretation of the Constitution in conformity with the treaty.
3. The Role of the International Law in the Turkish
Constitutional Court Decisions
The Turkish Constitutional Court was established by the 1961
Constitution. It was modeled on the European constitutional justice
practice. Like most European Constitutional Courts, it exercises a
posteriori control of the consistency of the laws with the Constitution.
The system of constitutional review established by the 1961
Constitution was preserved in the 1982 Constitution with a few
changes. In the 1982 Constitution, the Constitutional Court, being one
of the highest constitutional organs, is on a par with the Grand
National Assembly and the Executive and placed as the first judicial
organ among "the High Courts".
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As you know, the primary function of constitutional courts is to
protect fundamental rights and freedoms against state actions.
Accordingly, the more a constitutional court protects rights and
freedoms and extends their exercise, the more it has accomplished.
The principles of international law maybe are a very handy tool for
constitutional courts to extend the scope of rights and freedoms. It is
possible to extend freedoms by the way of interpretation of
constitution in accordance with the principles of international law.
Certainly, this is one of the functions of the constitutional review. The
Turkish Constitution does not prohibit this modality to the
constitutional court. However the Turkish Constitutional Court has
not used this tool to amplify rights and freedoms until the
constitutional amendments in 2010.
Accordingly, it used the international principles of international law,
especially the European Convention on Human Rights, to justify its
judgements and to supplement the municiple law, instead of amplifying the
sphere of constitutional rights and freedoms. But, since the composition,
powers and structure of the Court were changed considerably by the
constitutional amendments in 2010, Turkish Constitutional Court was
authorized to conclude and finalize the individual applications and the Court
started to receive applications as of 23/9/2012. After that time the
constitutional jurisdiction review has been implemented against the
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infringements of rights caused by persons or institutions exerting public
authority. The judgments rendered by the Court have increased the
international recognition of its successful performance with regards to
promoting the rule of law, fundamental rights and freedoms and democracy
in Turkey. Fallowing two judgements are examples for its new approach:
a. Judgement on the Right to Liberty and Security of Person,
Freedom of Expression and the Press in Erdem Gül and Can
Dündar Application.
Cuhuriyet daily's two journalists Can Dündar and Erdem Gül were
arrested last year after publishing a controversial report regarding the
National Intelligence Organization. The two men are accused of
spying and "divulging state secrets", as well as being members of a
terror organisation. Another charge included the violation of state
security after the release of the footage. Dündar and Gül objected to
the said decision on their detention, however, such objections were
dismissed. Upon the rejection of their objections, Dündar and Gül
lodged an individual application to the Constitutional Court.
The Constitutional Court in its plenary sitting on 25/2/2016 held in
its judgment on individual application of Erdem Gül and Can Dündar
(App. No: 2015/18567) regarding the alleged violation of freedom of
expression and press and unlawful detention, that the applicants’ right
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to personal liberty and security guaranteed under article 19 of the
Constitution and freedom of expression and press guaranteed under
articles 26 and 28 of the Constitution were violated and also that the
judgment be referred to the relevant Court for the removal of the
violation.
b. Surname of the Married Woman
One of the most criticized and it's inequality expressed by women
is surname provision of the Turkish Civil Code. According to the
Article 187 “A woman takes her husband's surname after marriage.
But after marriage, with a written application to the census bureau or
marriage official, she can use her maiden surname before her
husband's surname”. This regulation related with the surname of the
women is against the Art. 10 of the Constitution which states that men
and women have equal rights.
Since in marriage, it is obligatory to use a common surname and
this common surname is the surname of the man according to article
187. Such an arrangement does not ensure the equality among the
spouses in regards to the surname issue as it should have.
As not leaving the selection of the marital surname to the free wills
of the spouses that have equal rights, shall result in the limiting the
identity right of the woman on her surname and thus the intervention
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to the right of the women to protect and develop her material and
moral existence; this is also against article 17 of the Constitution.
Although at the Ünal Tekeli-Turkey case, the European Court of
Human Rights has concluded that the married woman can use her
maiden surname alone.
Until the application 2011
Constitutional Court decided that
Article 187 of the civil code did not contrary to the Constitution and
the objection was rejected by a majority vote. However, the
Constitutional Court changed its case law in accordance with the
decisions of the European Court of Human Rights.
Now there are severel individual application to the Constitutional
Court relating to surname of the married women.
One of the
applicant was Gülsim GENÇ.
The applicant alleged that as a result of the practice carried out as
per article 187 of the Turkish Civil Code, which prevents a married
woman from utilizing her maiden name on its own, her rights defined
under articles 10, 12, 17 and 90 of the Constitution were violated, and
requested the determination of the violation and the compensation of
the damage she incurred.
The Constitutional Court in its judgment on individual application
of Gülsim Genç regarding her right to protect and improve spiritual
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existence guaranteed under Article 17 of the Constitution was violated
and also that the file be sent to the relevant Court to carry out a retrial
in order for the violation and the consequences thereof to be removed.
In sum, applications which contain applicants wishing to use their
own surnames was accepted.
Following the European Court of Human Right's and Constitutional
Court decisions, a legislative proposals such as "spouses common
surname choice right" and "woman's keeping solely their own
surname after marriage right" are send to Grand National Assembly of
Turkey even proposals are not discussed yet. But it should be stated
that Turkey must make some domestic regulations about this topic.
Conclusion
As a conclusion, international law with conventions and judgments affect
Turkish Constitution and the decisions of the constitutional court. So, it
enforced our legislator to revise municipal law in the construction of a legal
landscape in Turkey.
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