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Constitutional Court

Application by Court of First Instance Court to Annul a Certain Criminal Provision

The Turkish Criminal Code, Article 103, Number 5237, provides sentencing for child sexual abuse without graduating the sentence in proportion to the child’s age. The Bafra High Criminal Court applied to the Constitutional Court to annul this provision, and the Court annulled the following two provisions: (1) child sexual abuse carries a sentence between eight and fifteen years; (2) child sexual molestation carries a sentence between three and eight years.

Application by Court of First Instance to Annul a Certain Civil Law

During a divorce proceeding, a matter arose regarding contribution and participation receivables, particularly the application of the Turkish Civil Code, Number 4721, Article 219, Sub-Article 2, Sub-Paragraph 5, dated November 22, 2001, which provides that the income from a personal asset is such spouse’s acquired asset. The court of first instance held that this provision violated the Constitution, Articles 2 and 35, because it unreasonably interfered with property rights and would, therefore, prevent civil marriages.

Application by Court of First Instance to Annul the Surname Act in Part

In 2001, a mother divorced her husband, who was her child’s father, and the court of first instance granted custody to the mother, who then filed a lawsuit to change the child’s name and surname because both names were causing the child problems in his social environment—his friends were making fun of him. The Surname Act provides that the husband, as the leader of the marriage union, shall choose the child’s surname, even after divorce.

Application by Gülsim Genç

Gülsim Genç petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Genç’s petition accordingly. Genç appealed to the court of appeals, which affirmed the court of first instance’s dismissal. Genç then filed an application to the Court.

Application by Sevim Akat Eşki

The applicant petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Eşki’s petition accordingly. Eşki then filed an individual application to the Court asserting discrimination and other violations.

Application by Tuğba Arslan

A judge removed Tuğba Arslan, a member of the Ankara Bar Association, from a hearing because Arslan was wearing a headscarf while representing a party. The judge postponed the hearing and ordered alternate counsel in Arslan’s place. Turkish Bar Association rules prohibit attorneys from wearing headscarves during hearings. Arslan appealed to the Constitutional Court, claiming that because no legislation prohibited headscarves during hearings, her rights to freedom of religion and equal treatment had been violated.

Applications by Various Courts of First Instance to Annul a Certain Civil Law

The Turkish Civil Code permits a married woman to use her maiden name only if the maiden name is used in conjunction with her husband’s surname. Three applicants, each in separate petitions to courts of first instance, sought to use their maiden names only. The courts of first instance applied to the Constitutional Court, which denied the request because the legislature did not abuse its discretion in determining that the husband’s surname should be the family surname, and this did not violate the Constitution’s equality principle.

B.M. v. R.C.

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined.

Decision U.No. 104/2016

A 65-year-old woman working in a state institution requested to continue her employment for two more years was denied on the basis that, according to Paragraphs 2 and 4 of Article 104 of the Labour Law of Macedonia (the “Contested Provisions”), the age limit to which women can work is 65 years of age, while this limit for men is 67 years of age.

Individual Application of Albina Kiyamova

The applicant, Albina Kiyamova, was arrested at Atatürk Airport in Istanbul for infringing an order that prohibited her entry into Turkey. She submitted a complaint to the Chief Public Prosecutor's Office (the “CPPO”), asserting that the police subjected her to treatment incompatible with human dignity while she was in custody. Specifically, the applicant said that the police subjected her to a naked body search and other inhuman and degrading treatment charged by race and gender discrimination.

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