STATEMENT FROM THE ASSOCIATION OF RESEARCH ON CONSTITUTIONAL LAW (ARCL) ON THE PRESIDENTIAL DECISION ON THE ISTANBUL CONVENTION
STATEMENT FROM THE ASSOCIATION OF RESEARCH ON CONSTITUTIONAL LAW (ARCL)
ON THE PRESIDENTIAL DECISION ON THE ISTANBUL CONVENTION
On 20 March 2021, the President of Republic of Turkey announced Turkey’s withdrawal from “The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence” (the Istanbul Convention) with a presidential decision. The relevant presidential decision invoked a previously enacted presidential decree that enabled the President, among others, to “terminate” the international agreements. Leaving aside the significant formal legal issues at the outset, this decision is in no way compatible with the internationally agreed principles on human rights law, protection of women against violence, and gender equality-to which Turkey has contributed during their formation.
This decision marks a clear departure from an established legal framework on two levels:
- This is a departure from the constitutional achievements protecting individuals by developing their rights and freedoms against violations by the state and third parties since 2001.
- This is a departure from the common values system set out in the human rights treaties of the Council of Europe, of which Turkey was among the founding states, and other international organisations of which it is a member.
Within this framework, we take note of the following regarding the presidential decision:
1.The termination of the Istanbul Convention and the ensuing attempt of official justification, which alone, is a violation of the prohibition of discrimination, undermines the validity of the provisions of the Constitution, the constitutional achievements and international law for the protection and improvement of human rights.
The Istanbul Convention, which the presidential decision intends to terminate, defines violence against women as a violation of human rights and discrimination. This Convention imposes positive obligations on states regarding “all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” (Articles 3 and 5)
This Convention protects the rights of the victims, without discrimination on any grounds such as sex, gender, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status. The Convention specifically underlines the duty of the states to prevent domestic violence, particularly against women.
It is emphatically stated among the obligations imposed by the Convention that the states are under the responsibility to develop comprehensive policies, including the obligation to condemn violence and all forms of discrimination against women, to prevent, investigate and punish violence, and to implement these policies in both public and private spheres. (Art.4, Art.5)
The relevant presidential decision reveals a statement of political will demonstrating that the Turkish government does not want to protect the women and the victims of domestic violence in general; and that it will not fulfill the obligation to condemn, investigate and punish violent acts that constitute serious human rights violations in accordance with the democratic standards of the Council of Europe, of which it is a member.
This convention, which has been duly put into effect and has become part of domestic law, is one of the legal achievements attained as a result of the struggles of Turkey’s women’s movement. Since its entry into force, the Convention has contributed significantly to the advancement of the rights and freedoms protected in the Constitution, making the Constitution a living document as an example of the conception of a dynamic constitution. It has both indirect and direct transformative impact on the decisions of the Constitutional Court.  This Convention has also become a standard-setting document by putting into effect constitutional rights and principles in line with the international human rights law such as the right to life compatible with human dignity, right to bodily and spiritual integrity, right to privacy, right to fair trial including a judicial process conscious of gender equality, protection of children against all forms of violence and abuse; and right to equality and prohibition of discrimination,
The Convention’s contribution to the prevention of all kinds of violence against women has also helped to fulfill the positive obligations contained in Article 5 of the Constitution, i.e. the state’s obligation to liberate and ensure the right to live free from violence. Therefore, the intention to withdraw from the Istanbul Convention means ignoring the constitutional achievements – and ultimately – the supremacy of the Constitution.
This presidential decision will likely create results that will trespass onto the scope of the “matters regarding the executive power.” Rather than being a legal document, this decision is an expression of a political intervention that condescends to constitutional rights and freedoms and citizenship based on equality. Indeed, within less than 24 hours following the withdrawal decision, the President’s Directorate of Communications issued a press statement presenting the “normalisation of homosexuality” as the justification of withdrawal. Needless to say, this justification alone is an example of hate speech against which many international treaties, such as the Istanbul Convention, ECHR, ICCPR, and CEDAW aim to struggle.
CEDAW Committee’s General Recommendation No. 35 (2017) recognised that the prohibition of gender-based violence has become a norm of international customary law, that every civilised state should respect. The above-mentioned official justification is not acceptable in terms of human rights law, and it is an abuse of social prejudices by the state in order to avoid its positive obligations to provide protection to victims of violence. This alone, constitutes a separate constitutional and human rights law violation.
2-. The termination of the Istanbul Convention and the relevant justification reveals the lack of political will to protect and improve human rights in general; and state’s violation of its national and international duties and sidestepping the necessary mechanisms of national and international governance.
It is quite astonishing to witness the government’s inconsistent and contradictory attitude to human rights, by terminating the Istanbul Convention barely 20 days after the announcement of its New Human Rights Action Plan on 2 March 2021 which, among other points, specified “Increasing the Effectiveness of Combating Domestic Violence and Violence Against Women” as a specific goal. Both the termination decision and the ensuing justification statement is in contradiction with the universal values concerning human rights. Such political stances, which are at odds with gender equality, are far from developing viable solutions for social problems faced by women. It is noteworthy to mention that the incumbent government’s long-standing catchphrase “zero tolerance” for combatting violence is now perceived to be useless in view of its discriminatory stance.
On 9 March 2021, the Grand National Assembly of Turkey (GNAT) established a Parliamentary Investigation Committee to “Investigate All Aspects of the Causes of Violence Against Women and to Determine the Measures to be Taken” (Decision No. 1280). The fact that parliamentary investigation committees on violence against women had been established in previous periods, demonstrates the active use of parliamentray oversight regarding the issue. According to Article 70 of the Istanbul Convention, the GNAT has a complementary role in the implementation and monitoring of the Convention. In this framework, the Presidential decision on termination is incompatible with the powers of the legislation. This decision also means that the GNAT is barred from fulfilling its duty.
The Istanbul Convention prescribes an independent expert body founded by the contracting states responsible for monitoring the implementation (GREVIO). The national reports prepared by these experts should be submitted to the legislative bodies of the relevant states. GREVIO published its report on Turkey in October 2018. Among the urgent issues highlighted in relation to the institutional responses against violence were effective measures to be taken in domestic law against violence and the need to build victims’ trust. The report points out to the need of legal framework to prevent crucial issues of violence such as forced marriage and stalking. The finding of an effective solution to violence against girls aged 15-18 was also recommended.
While this report should be submitted by the executive to the Parliament immediately, the decision to terminate the Convention means trying to avoid both national parliamentary oversight and international monitoring. With the presidential decision, these obligations and the responsibility arising from them are ignored. However, it is not possible to neglect such a responsibility. This decision may well generate the responsibility of the executive arising from its failure to use its competences in accordance with the Constitution and laws.
3- The Presidential Decision on the Termination of the Istanbul Convention is Unconstitutional in Procedural Terms.
By virtue of Article 90 (1) of the Constitution, international agreements are subject to adoption by the GNAT by a law approving the ratification. The GNAT adopted the Convention by the Law No. 6251 which concerns fundamental rights and freedoms. Despite this backdrop, the Convention was terminated by a presidential decision disregarding the principle of parallelism that requires procedural coherency for enactment and withdrawal. It is a legal disgrace to terminate an act by a mere presidential decision which is legally enforced and against which appeal to the Constitutional Court is explicitly prohibited by Article 90 of the Constitution. Moreover, Article 3 of the Presidential Decree No. 9 on the termination of international agreements that was adopted shortly after the adoption of presidential system in 2017 is unconstitutional. This decree served as a legal basis for the presidential decision terminating the Istanbul Convention. The Constitution stipulates that presidential decrees may only be issued on matters pertaining to the executive power, and that fundamental rights and freedoms, which should be regulated exclusively by laws, may not be the subject of these decrees (article 104). However, the aforementioned presidential decree stipulated that international agreements, including those pertaining to fundamental rights and freedoms which should be regulated by laws, may be terminated by a presidential decision. Consequently, both the presidential decision terminating the Istanbul Convention and Article 3 of the Presidential Decree No. 9 are unconstitutional in terms of Articles 90 and 104 of the Constitution. On the other hand, the constitutional achievements regarding human rights constitute the framework of the regulatory power granted to the legislature by the Constitution. It should be highlighted that a law that reverses these achivements and renders rights and freedoms insecure will also be against the Constitution. Legislative power is not unlimited in this context.
Within the framework of the above-mentioned issues, the Association of Research on Constitutional Law (ARCL) calls for the immediate repeal of the Presidential Decision No. 3718 as a legal solution which will ensure the ongoing struggle against violence against women and for the human rights and; and be in accordance with the supremacy of constitutional and human rights law.
In the absence of a political will in this regard, it is possible to make recourse to judicial remedies against the Presidential Decision No. 3718, which violates fundamental legal norms and principles including Turkey’s international and national obligations.
As per the Law on Council of State No. 2575 everyone deprived of protection against violence against women and domestic violence as provided by the Convention has the legal standing to bring action against this Presidential Decision before the Council of State. This particularly applies to the 42 million women living in the Republic of Turkey.
Also, the causality between all acts of violence against individuals under the protection of the Convention and Law No. 6284; and the Presidential Decision No. 3718 should be deemed established. This will undoubtedly justify the allegations of the state’s violation of positive obligations arising from Article 5 of the Constitution on duties of the state regarding the prevention of violence.
Inciting violence and discrimination in an attempt to harness political legitimacy from social polarisation is deplorable in a democratic constitutional state. As the Association of Research on Constitution Law, we express our strong commitment to gender equality and assert that violence and discrimination are the biggest obstacles against the full realisation of the constitutional principle of an equal citizenry. We respectfully declare to the public and international community that we will always monitor this unconstitutional decision and its aftermath.
 The Presidential Decision No. 3718, published in the Official Gazette on March 20, 2021
 The Presidential Decree No. 9, published in the Official Gazette on July 15, 2018.
 See Decision Z.A (2015/6302); E.2015/68; E. 2019/2.
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