If there is a mechanism which secures the lives of women in Turkey today, it is maintained not by the legal system, but through the efforts and solidarity of women.
Maurice Dumas in the book Misogyny states that male violence has three characteristics: universality, ability to change forms, and buoyancy. We are feeling and experiencing all three of these characteristics to the marrow today in Turkey. On the night of March 20, millions of people stayed up until 2 a.m. in the morning, refreshing the website of the Official Gazette. Everyone was waiting to learn the answer to the following question: “Was the ratification of the Istanbul Convention unilaterally annulled with a single signature?” A hostile group who are against the convention announced what was coming through posts targeting women such as “things will soon get messy here, they will turn purple with rage, don’t sleep”.
The night of March 20 marks another day in the history of women’s rights in Turkey: women defended their lives with the hashtag #theistanbulconventionisours until the first hours of the morning. This text is an answer not only to all those who defend the Presidential Decision to withdraw from The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, better known as the Istanbul Convention, but also to those who are claiming that “there is nothing to worry about” the decision to pull-out of the convention.
The annulment of a convention which protects the human rights of millions of women and which secures legal protection against discrimination based on sexual orientation and gender in one night with a single signature means that all the other laws and international agreements which protect women and others who are exposed to discrimination based on sexual orientation and gender identity are under threat.
Statements such as “CEDAW, Lanzarote Convention, and 6284 are next in line” voiced frequently in some circles following the annulment of the Istanbul Convention as well as the proposals for the amendment of the Turkish Penal Code to decriminalize sexual abuse in case of marriage with children -proposals which have been on the agenda of the parliament for the last few years- indicate that this threat is real and very immanent. The Lanzarote Convention, about which annulment calls are being made, is the “Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse”.
After the withdrawal from the Istanbul Convention, the proponents of the decision often ask the following question: Are women left unprotected when Turkey withdrew from the convention? Yes.
In order to explain why the answer to that question is “yes”, we need to examine the legal history of Turkey from the framework of violence against women, and this history tells us the following: not leaving the Istanbul Convention is perhaps the most important and critical moment in the history of women’s rights in Turkey.
Just a few weeks ago, after the 8th of March Feminist Night March, women who participated in the march were detained in the middle of the night. Does not the decision to withdraw from the Istanbul Convention following the detention of women mean that the will of millions of women are not recognized? Despite the protests of tens of thousands of women who took to the streets in the midst of the pandemic and of millions of women who supported the protest on social media after the Official Gazette declaration, despite the protests and statements of the bar associations and jurist academics about the unlawfulness of this decision, despite the fact that there is a social controversy over the withdrawal decision, the Ministry of Foreign Affairs notified the Council of Europe regarding the withdrawal decision on 22 March 2021. Doesn’t all this amount to stating that “I do not recognize the will of millions of women, millions of people and I do not see them as citizens of this country.”
The Twitter vandalism waged against women defending the Istanbul Convention on social media is an aggressive misogyny which is also the continuation of the abovementioned negligence towards women. On the one hand, the government makes public statements to the detriment of women; on the other hand, anti-feminism, anti-women’s rights, and anti-equality movements rise in social media and in some circles –all combined, what we are going through is a misogynist siege. We can only overcome this siege with women’s solidarity which unsettles all the calculations.
Various organizations such as the Council of Europe and the United Nations, of which Turkey is one of the founders, expressed their worries about Turkey’s decision to withdraw from the convention. However, these statements did not mean anything to Turkey.
Defending the Istanbul Convention in the public debates about the convention especially since last year has, in a sense, has become a threshold and a litmus test regarding the willingness to prevent violence against women.
In this context, the annulment of the Istanbul Convention made it impossible for millions of women to believe that they will get a result when they appeal to justice, even if Turkey has the most perfect domestic regulations/laws.
Lawsuits against the withdrawal from the convention: There are tens of lawsuits at the Council of State
Pursuant to the Article 90 of the Constitution, the Istanbul Convention was ratified as an international accord by law of approval adopted by the Turkish Grand National Assembly. The approval law No. 6251 dated 29 November 2011 is still in force. If a law is going to be repealed, this should take place through a procedure to be carried out by the parliament.
However, the annulment of the convention on the night of the 20th of March in the Official Gazette was made by a decision which has been signed solely by the 12th President and named as the “Presidential Decision”. The idea “I can pull out from a convention on human rights with a single signature” is founded on Article 3/1 of the “Presidential Decree” dated 15 July 2018 which gives the President “the power to terminate international agreements”.
So, can we say that the decision which was published in the Official Gazette on 21 March is an unprecedented decision which surprised and astounded all the jurists in Turkey? We are not talking about a context where there is a general regulatory procedure such as a statutory decree or a legislation.
It is not a law or a statutory decree, so an appeal to the Constitutional Court is out of the question. It is called a “decree” and it is signed by the President. Most importantly, it terminates a human rights agreement, which was previously found in compliance with the law and was deemed above the law according to the Constitution (in case of conflict with the laws).
We all agree that this decree is null and void. According to the administrative law “all the procedures which are heavily unlawful, and thereby, whose existence cannot be referenced, are null and void”.
This decree is null and void, but, on March 22, the annulment process has been notified to the European Council and the Council, as soon as it received the notification, announced on its website that Turkey will have terminated the convention on 1 July 2021 in accordance with the Article 80 of the convention. Thus, this procedure which millions of people consider null and void has gained a meaning in the international arena. For instance, GREVIO, the implementing mechanism of this convention, will not be able to communicate with Turkey on matters of contractual obligations as of 1st of July.
Against this unprecedented decree, which is null and void but is final and executed, where could action be taken? The only judicial mechanism that can be appealed to about this decree which does not lie within the scope of an appeal to the Constitutional Court, is the Council of State which can claim unlawfulness in the procedures executed by the administration. In the meantime, dozens of bar associations, women’s organizations, and women have filed or are preparing to file lawsuits at the Council of State. What is demanded from the Council of State is not only to annul this decree, but also to register that the other decree, which gives the President the power to pull out of international agreements and is also the basis of this decision, is against the Constitution. Given that the first thing that is annulled based on this presidential power to pull out of international agreements is a human rights agreement, it will be requested that the Council of State takes this decree to the Constitutional Court since this power is totally contrary to the essence of the Constitution.
Additionally, since this decree to withdraw from the convention is unprecedented and cannot be rendered meaningful, preparations are being made to appeal directly to the European Court of Human Rights on the grounds that there are no effective judicial means to address this issue.
The first step of tens (if not thousands) of lawsuits at the Council of State is the suspension of execution. If the Council of State rules that the Presidential Decision in question and the annulment of the Istanbul Convention are against the law and are very likely to cause imminent harm due to irreversible illegality and violation of the law, it will suspend the execution. The crucial aspect of the execution of the suspension order lies in that, thanks to this order, the Council of Europe will have to wait for the conclusion of the judicial process and the Istanbul Convention will remain in force by then.
But why is this decision a violation of grave human rights and the beginning of irreversible violations?
What was there before the Istanbul Convention?
The very first legal regulation concerning violence against women is the Law No. 4320 which was adopted following the struggles of the feminist movement. However, this law is not a law addressing violence. The law specifically regulates the restraining order only for married women in cases of violence from their husbands. As a result of the struggle of women’s movement, the scope of this law and the restraining order was expanded on the grounds that women were subjected to violence by their ex-husbands as well as other men than their husbands. However, since the Law no. 4320 was not a comprehensive law on violence, it failed to be an effective step in combating violence.
With the Nahide Opuz decision in 2011, Turkey was convicted by the European Court of Human Rights for failing to protect a woman’s right to life and failing to prevent ill-treatment, torture, and discrimination. The very first judgement (legal decision), which is also the most comprehensive legal precedent on violence against women in the international arena, was against Turkey.
In 2009, a group of experts consisting of the representatives of the Council of Europe member states drafted a convention, referring particularly to the Nahide Opuz decision. In 2011, this draft convention was submitted to the Council of Europe, which would later become the Istanbul Convention.
The government of Turkey, which was convicted and condemned by the ECtHR, used the struggle against violence against women a showcase.
Based on the convention, Turkey codified the Law No. 6284 to Protect Family and Prevent Violence Against Women, with the contribution of the experiences of women’s movement. According to the article regulating the “Aim” of the law, “(…) especially the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, and other current regulations shall prevail.” The method “prevention, protection, punishing the perpetrator of violence, and compensating the damage caused by violence” that is stipulated as the basis in the prevention of violence in the Law No. 6284 is a method introduced by the Istanbul Convention.
Therefore, after the annulment of the Istanbul Convention, our only remaining legal mechanism is the Law No. 6284. Considering that this law is also based on the Istanbul Convention, we may face an amendment in the not-too-distant future.
How was the Istanbul Convention drafted?
The Istanbul Convention has too long and determined history for anti-convention people to even dare to oppose.
- The Council of Europe member states discussed for the first time the necessity for a regional agreement and implementation mechanism on the prevention of violence against women in 2005 at a council meeting in Warsaw.
- In this meeting, the Council of Europe announced the campaign to Combat Violence Against Women including Domestic Violence. With this campaign, the need emerged for a legally binding agreement to protect those who are subjected to violence and to punish perpetrators. This proposal was supported in 2006 by the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe.
- In 2006, European Ministers of Justice, upon reviewing the European Committee on Crime Problems report, ruled that there must be a legally binding agreement to combat violence against women.
- In 2008, an ad hoc committee and a committee consisting of representatives of Council of Europe member states were established. Prof. Dr. Feride Acar represented Turkey in this committee. The committee met 10 times and drafted the Convention in 2011.
- Meanwhile, the European Court of Human Rights found Turkey in violation of its obligations to have sufficient mechanisms to protect women’s right to life in 2011.
- The government of Turkey hurriedly signed the Istanbul Convention and was the first signatory state. After that Turkey started to work on drafting a law on violence. The Law No. 6284 on Violence was accepted by the Turkish Grand National Assembly on March 8, 2012 as a symbolic gesture and entered into force on March 20, 2012.
Turkey, as a founding member of the Council of Europe, participated in the entire process of drafting and adoption of the Convention. Apart from the responsibility of being a founding member of the Council of Europe, pulling out of the convention overnight with a single signature, is a challenge to the legislative system of the Council of Europe and, maybe, a beginning of an exit from the Council. And women’s rights were the first to abandon.
Do not existing domestic legal regulations suffice?
According to the constitution, international conventions have the force of law. The constitution stipulates that if there is a conflict between international conventions on fundamental human rights and domestic law, international conventions will prevail and that it is not possible to apply to the Constitutional Court on the grounds of unconstitutionality of international agreements.
The Istanbul Convention, on account of its scope, was an agreement which warranted the civil code, penal code, legislations and all other legal documents against violence. This convention had the force to interdict the reversal of the already gained rights of women and envisioned that the existing legislations and regulations will always be improved in favor of women and based on the principle of equality.
Today, are there any legislation that we can think of as sufficient? What about all the other international agreements that can be pulled out from with a single signature? Or, what about all the other legislations that can be changed to the detriment of women in a single parliamentary session?
What will happen next?
The Istanbul Convention asserts that gender roles which are traditionally ascribed to women and men are at the foundation of violence and accepts that as long as traditional and cultural causes are not eliminated violence will not come to an end.
To be able to demonstrate the will to combat violence, it is necessary to begin with naming the violence (male violence) and the source of violence (gender roles and all the cultural and traditional elements that refuse equality and legitimize violence). Those who are against the Istanbul Convention see violence either as an isolated incident or an endemic disease that needs to be rehabilitated or a family matter in which the person who has been exposed to violence and the person who perpetrated the violence should be reconciled. This point of view is completely incompatible with methods proposed by the Istanbul Convention which aims at preventing violence, protecting women, punishing the perpetrator, and compensating for the damage. In short, although we are not returning to a state of jungle laws, a series of practices which are no better than that await us.
In lieu of a conclusion
If there is a mechanism which secures the lives of women in Turkey today, it is maintained not by the legal system, but through the efforts and solidarity of women who raise their voices on the streets, in different areas and who send emails and messages to the women’s organizations saying that “I also want to file a lawsuit against the withdrawal from the Istanbul Convention”. Despite everything, what makes this mechanism function are the women who resolutely claim their rights and the legal precedents that leave a mark in the history of the juridical system.
The withdrawal of Turkey from the convention is significant not only for Turkey but also for all the member states of the Council of Europe and even the international community. This is a move similar to that of Trump’s withdrawal from the Paris Agreement on Climate Change in 2017 when he was elected the President of United States, it is an effort to discredit and render the convention unimplementable. In short, this decision is a hard blow against the legitimacy and implementability of the convention on an international level and sets precedence for many countries where human rights are losing ground −in an environment of discussion which corrodes the convention and its mechanisms, it is an invaluable card.
For this reason, combatting violence against women and everything that legitimizes this violence is universal. We should note in the international history of the Istanbul Convention −which is targeted by countries such as Poland and Hungary which compete with Turkey in terms of their human rights record− that it is the women’s solidarity in Turkey that empowers the global legitimacy of the Istanbul Convention.
Translator: İpek Tabur
Proof-reader: Müge Karahan
For the original in Turkish / Yazının Türkçe orijinali için
