Women and Justice: Court: Constitutional Court

Domestic Case Law

Hassam v. Jacobs NO Constitutional Court (2009)

Gender discrimination

The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution. The court found that section 1 of the Intestate Succession Act was inconsistent with the Constitution and invalid to the extent that it did not include more than one spouse in a polygynous Muslim marriage in the protection afforded to “a spouse.” Accordingly, the applicant could inherit from her late husband’s estate.

Die applikant was in ‘n poligame Moslem-huwelik.  Nadat haar man intestaat gesterf het, het die respondent, die eksekuteur van die oorledene se boedel, die applikant se eise geweier op grond daarvan dat poligame Moslem huwelike nie wettiglik erken word onder die Intestate Erfreg Wetgewing nie. Die hof het bevind dat daar onbillik gediskrimineer was teen die applikant op grond van godsdiens, huwelikstatus en geslag, was dus strydig met Artikel 9 van die Grondwet.  Die hof het bevind dat Artikel 1 van die Intestate Wet strydig was met die konstitusie (Grondwet) en ongeldig is tot die mate dat dit nie meer as een gade in ‘n poligame Moslem-huwelik insluit tot die beskerming wat aan ‘n eggenoot gegee word nie.  Gevolglik kon die applikant uit die boedel van haar oorlede man erf.



Daniels v. Campbell and Others Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.

Die applikant was ‘n vrou wat volgens Moslem tradisie getroud is en wie se eggenoot intestaat gesterf het. Die huwelik is nie volgens die huwelikswet 25 van 1961 deur ’n huweliks beampte bekragtig nie. Die huis waarin die applikant en haar man gewoon het is na die oorledene se boedel oorgeplaas. Die applikant is meegedeel dat sy nie uit die boedel van die oorledene kon erf nie omdat sy getroud was volgens die Moslem tradisie en is dus nie 'n "oorlewende gade" nie. ’n Eis vir onderhoud teen die boedel is op dieselfde basis verwerp. Die hof het beslis dat die woord "gade" soos gebruik word in die Wet op Intestate Erfopvolging, die oorlewende maat van ’n monogame moslem-huwelik insluit. Die woord "oorlewende” wat gebruik word vir die Wet 27 van 1990 vir die onderhoud van oorlewende eggenote, sluit die oorlewende eggenoot in van 'n monogame Moslem huwelik



Bhe and Others v. Khayelitsha Magistrate Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf.  In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.



Application by Tuğba Arslan Constitutional Court (2014)

Gender discrimination

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. The Court agreed, holding that women may wear headscarves in accordance with Islam and the practice is common in Islamic society; therefore, the Arslan’s religious right was violated. Further, the Court stated that some limitations could be placed on rights but that such limitations, among other requirements, must be prescribed by law. Moreover, the Court reasoned that Arslan’s removal violated the non-discrimination principle, since on the one hand, women attorneys who do not wear headscarves are permitted to attend hearings while Arslan, on the other hand, is not.



Application by Gülsim Genç Constitutional Court (2013)

Gender discrimination, International law

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. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Genç asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention. The Court repeatedly referenced the application by Sevim Akat Eşki, which is an indication that similar future rulings may result.



Application by Sevim Akat Eşki Constitutional Court (2013)

Gender discrimination, International law

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. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Eşki asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention.



Applications by Various Courts of First Instance to Annul a Certain Civil Law Constitutional Court (2011)

Gender discrimination

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. The Court reasoned that surnames are important for identifying not only the individual, but also the family and ancestry. Consequently, the law requiring women to take their husbands’ surnames benefits public welfare and order. The Court also reasoned that having (the husband’s) surname is a personal right that cannot be renounced or alienated. Moreover, the fact that the surname is an individual right does not mean that the legislature cannot act to ensure public welfare and order. The Constitution states that the family is the foundation of the Turkish society and requires the State to promulgate necessary regulations to preserve the family.



Application by Court of First Instance Court to Annul a Certain Criminal Provision Constitutional Court (2016)

Sexual violence and rape, Statutory rape or defilement

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. The Court reasoned that the legislature may consider the country’s moral values and social and cultural structure in determining the punishment, and while heavier sentences for crimes against younger children who are more vulnerable to sexual assault would be reasonable, the Court opined that in some cases the crime and the punishment might not be proportional, which would violate the “state of law” principle. Therefore, the Court annulled the sentencing guidelines, effective six months following publication in the Official Gazette.



Application by Court of First Instance to Annul a Certain Civil Law Constitutional Court (2016)

Divorce and dissolution of marriage, Property and inheritance rights

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. The Constitutional Court, considered the Constitution, Article 35, which simply states that property rights are universal, and this right shall only be limited if public welfare requires. The Court also considered Article 13, which states that fundamental rights and freedoms may be limited only by statute, so long as the core of such rights, as well as other relevant constitutional provisions, are not affected. The Court also noted that Article 41 establishes the state’s positive obligation to promulgate regulations to protect and preserve the institution of the family. The Court held that, while the law in question limits property rights, this limitation does not affect the core of the right and is based on justifiable purposes, and the law in question does not violate the Constitution. The justifiable purpose is protecting families, and especially women, by requiring income from a personal asset to be mutually distributed, thereby promoting public welfare.



Application by Court of First Instance to Annul the Surname Act in Part Constitutional Court (2012)

Divorce and dissolution of marriage, Gender discrimination

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. The court of first instance held that this provision violated the Constitution’s equality principle and requested that the Constitutional Court annul the provision.  The Constitutional Court unanimously agreed, holding that the Constitution, Article 41, establishes the equality between husband and wife; moreover, the right to choose a surname for the child was an element of custody. The Court noted that the Turkish Civil Code, Number 4721, had introduced material changes in husband–wife equality, and more importantly, articles that did not comply with the equality principle had been excluded from the law, such as the husband being the leader of the marriage union. The Court referenced the European Court of Human Rights, which held that any differing treatment based on gender, except for valid reasons, breaches the non-discrimination principle. According to the Constitutional Court, the wife and the husband were in the same position regarding their rights and obligations, both during marriage and in divorce; therefore, granting the right to choose the child’s surname exclusively to the father would have violated the Constitution’s equality principle.



Levenstein v. Frankel Constitutional Court (2018)

Sexual violence and rape, Statutory rape or defilement

The case was initially brought to the High Court by individuals who had suffered childhood sexual molestation by the deceased, a prominent financier and philanthropist, in the 1970s and ‘80s. The applicants were unable to pursue criminal charges due of the effect of s18(f) of the Criminal Procedure Act 1997, which imposed a 20-year statute of limitations for most sexual offences (excluding rape, sexual trafficking, and using a child or a mentally disabled person for pornographic purposes). However, the High Court found s18(f) to be unconstitutional. The Constitutional Court affirmed, removing the statute of limitations for prosecuting all sexual offences.



Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative. 



Decision U.No. 104/2016 Constitutional Court (2016)

Employment discrimination, Gender discrimination

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. The Union-National Council for Gender Equality and the Macedonian Women’s Lobby initiated proceedings in the Constitutional Court of Macedonia (the “Court”) challenging the constitutionality of the Contested Provisions on grounds that they contravene Articles 9 and 32 of the Constitution. The Court held that the Contested Provisions are not in accordance with the established constitutional principle of equality of citizens on grounds of sex per Article 9 of the Constitution, on the basis that the Contest Provisions impose termination of employment of female employees under different conditions than male employees. The Contested Provisions are thereby repealed.



TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide. 

 

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.



Sentencia TC/0599/15 Constitutional Court (2015)

Abortion and reproductive health rights

The foundations “Justicia y Transparencia”, “Transparencia y Democracia” and “Matrimonio Feliz” challenged the constitutionality of Articles 107, 108, 109 and 110 of the Criminal Code Law 550-14. Law 550-14 regulates abortion, including the adjudication of cases of exoneration from criminal liability such as the interruption of pregnancy based on the crimes of rape, incest or malformations of the embryo that may endanger life. The foundations alleged the violation of, among others, Articles 101, 102, 105 and 112 of the Constitution that provide for the process of enacting organic laws (defined as those that regulate fundamental rights), and the violation of Article 37 that provides the inviolability of the right to life from the conception to death. The Criminal Code was approved by a simple majority. However, as it restricts fundamental rights such as the right to freedom, it must be considered as an organic law and therefore, had to be approved by a two-thirds majority. Additionally, only one of the chambers reviewed the executive authority’s observations before the law was approved. Likewise, the foundations argued that admitting exemptions from criminal liability to those who perform abortions was contrary to the Constitution which protects life from conception. The Constitutional Court admitted the action and ruled that Law 550-14 was unconstitutional because it created a new Criminal Code without following the due process necessary for its promulgation. 

Las fundaciones “Justicia y Transparencia”, “Transparencia y Democracia” y “Matrimonio Feliz” desafiaron la constitucionalidad de los artículos 107, 108, 109 y 110 de la Ley 550-14 del Código Penal. La Ley 550-14 regula el aborto, incluyendo el fallo de casos que tratan con la absolución de responsabilidad penal, como la interrupción del embarazo por delitos de violación, incesto, u otras malformaciones del embrión que pueden poner en peligro la vida de la madre y del feto. Específicamente, las fundaciones alegaron la violación de, entre otros, los artículos 101, 102, 105 y 112 de la Constitución, los cuáles contemplan el proceso de promulgación de leyes orgánicas (definidas como aquellas que regulan los derechos fundamentales), y además la violación del artículo 37, el cual establece como inviolable el derecho a la vida desde la concepción hasta la muerte. El Código Penal fue aprobado por la mayoría. Sin embargo, como restringe derechos fundamentales como el derecho a la libertad, el Código clasifica como una ley orgánica y, por lo tanto, debe ser aprobada por una mayoría de dos tercios. Además, sólo una de las cámaras tribunales revisó las observaciones dadas por la autoridad ejecutiva antes de que se aprobara la ley. Las fundaciones argumentaron que abstener de responsabilidad penal a quienes realizan abortos era contrario a la Constitución, la cuál protege la vida desde la concepción. La Corte permitió la acción a proceder y declaró que la Ley 550-14 en violación de la Constitucion en base a que creó un nuevo Código Penal sin seguir el procedimiento necesario para su promulgación inicial. 



Sentencia TC/0070/15 Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Mrs. Angela Merici Mendoza Minier challenged the constitutionality of Article 35 of Law number 1306-Bis published on May 21st, 1937, which provided that a divorced woman could not marry within 10 months after the divorce. Mrs. Angela argued that Article 35 contravened the gender equality provision provided in Article 39 of the Constitution because the 10-month waiting period to remarry did not apply to men. Article 35 thus conferred a privilege only to men. The attorney-general disregarded the action on the basis that the petitioner lacked legitimate interest. However, the Constitutional Court determined that as a woman, Mrs. Angela could be affected by Article 35 and ruled that she therefore had a legitimate interest in challenging Article 35. The Constitutional Court subsequently admitted the action and nullified Article 35 on the basis that it no longer fulfilled its aim to prevent a woman from remarrying when already pregnant with her former husband’s child because it could have negative consequences for the child or the newly formed couple. As technology now allows women to know their state of pregnancy at an early stage, the restriction is no longer needed. Moreover, the Constitutional Court acknowledged that it is a woman’s decision to remarry, pregnant or not. 

La Sra. Angela Merici Mendoza Minier desafió la constitucionalidad del artículo 35 de la Ley número 1306-Bis publicada el 21 de mayo de 1937, la cuál establecía que una mujer divorciada no podría casarse por un período de 10 meses posteriormente a un divorcio. La Sra. Angela sostuvo que el artículo 35 era contrario a la disposición de igualdad de género garantizada en el artículo 39 de la Constitución porque el período de espera de 10 meses para volver a casarse no se aplicaba a los hombres. Ella propuso que el artículo 35 confería un privilegio único a los hombres. El fiscal general ignoró la acción basándose en que la peticionaria no tenía un interés legítimo en la acción. Sin embargo, el Tribunal Constitucional determinó que, como mujer, la Sra. Angela podría verse afectada por el artículo 35 y dictaminó que, por lo tanto, esto era un interés legítimo suficiente para impugnar el artículo 35. Posteriormente, el Tribunal Constitucional admitió la acción y anuló el artículo 35 sobre la base de que no cumplía su objetivo inicial de evitar que una mujer se volviera a casar mientras ya estaba embarazada con el hijo de su ex esposo, lo cual podría tener consecuencias negativas para el niño o para la pareja recién formada. Como la tecnología ahora permite a las mujeres conocer su estado de embarazo desde una etapa temprana, dicha restricción ya no es necesaria. Además, el Tribunal Constitucional agregó que es una decisión personal de la mujer volver a casarse, embarazada o no.



B.M. v. R.C. Constitutional Court (2009)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

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. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.



Test-Achats Constitutional Court (2011)

Gender discrimination, International law

Following a proceeding brought by a Belgian consumer organization to seek the annulment of a law amending the Gender Law of 2007 in so far as it allowed certain differences in insurance premiums to be paid by men and women, the Constitutional Court (drawing on a judgment of the European Court of Justice as this concerned a question of the interpretation of a provision in a European Directive) ruled that such different treatment was permitted only for policies concluded before 21 December 2012.



L. Montre v. Institut national d'assurances Constitutional Court (1999)

Employment discrimination, Gender discrimination

Mr. Montre brought proceedings before the Antwerp Labor Court because the law applicable at the time (Royal Decree No 72 of 10 November 1967 on the retirement and survivors' pension for self-employed persons) allowed him to benefit from a full pension only as of the age of 65 and obliged him to accept a 25% reduction in his pension if he chose to retire at the age of 60 (5% per year before 65), while self-employed women could retire at the age of 60 and enjoy a full pension. Upon referral, the Constitutional Court ruled that there was no discrimination in this particular case because at that time, there were still long-standing differences between self-employed men and self-employed women as regards working opportunities and conditions. These objectively and reasonably justified a distinction as to the age of retirement: (i) Women had fewer opportunities to work as self-employed persons and as a result had lower pension entitlements as these were based on the length of career and women generally had shorter careers; (ii) To balance this inequality, a younger retirement age had been attributed to women and a pension reduction applied to men who retired before their normal retirement age of 65; (iii) It would take time to redress the low level of opportunities for women in the self-employment sector, so only a  progressive abolition of the retirement age difference could be appropriate.  This in turn would bring Belgium, an EU Member State, into line with EU regulations and case law on this topic. 



M.S. v. Markant Netwerk van Ondernemende Vrouwen Constitutional Court (2008)

Employment discrimination, Gender discrimination

The Labor Court of Ghent referred a number of prejudicial questions to the Constitutional Court in the context of a dispute between a woman who claimed that her employer dismissed her after having requested maternity leave, parental leave and the continuation of a related “time credit” contract. The Labor Court agreed that the company had not provided justification for the dismissal, but had questions about how to calculate the indemnity. The applicant claimed it should be calculated on the basis of full-time employment. The Constitutional Court, however, ruled that reducing an employee’s benefits proportionally for part-time workers (which disproportionately affects women) was not a form of discrimination as the regime applies equally to men and women.



Request to access conformity with the Constitution of procedural rules of the Provincial Assembly of Tanganyika (Requête en appréciation de la conformité à la constitution du Règlement intérieur de l’Assemblée provinciale du Haut-Uélé R.Const. 172) Constitutional Court (2015)

Gender discrimination

The Constitutional Court considered a challenge to the internal provincial government’s procedural rules which included, among other claims, that one Article of the procedural rules violated the gender equality requirement of Article 14 of the Constitution.  The Court found the procedural rules to conform to Article 14, provided that they must be understood and interpreted in light of line four of Article 14, which requires equitable representation of women in provincial institutions (available at pages 46-50 on linked site).



J.Y. Interpretation No. 728 Constitutional Court (2015)

Harmful traditional practices

The court petitioner, the eldest daughter of a registered successor of an “ancestor worship guild,” was prohibited from inheriting the status of successor after her father’s death due to internal regulations of the guild, which only allow male heirs .” The lower courts dismissed the petitioner’s claims, and the Constitutional Court affirmed. The court held that the internal regulation of the guild was not a “statute” or “administrative regulation” and was therefore ineligible for a petition of interpretation on constitutionality under the Constitutional Interpretation Procedure Act. The court also found that Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates that “for the guilds that existed before the promulgation of the Statutes, whether a person is a qualified successor to a guild should be determined by its internal regulations,” was not unconstitutional because the provision does not provide gender as a criterion for determining the status of the successor, and the objective is to preserve the stability of the law and to uphold the principle of prohibiting retroactive law. Moreover, the enactment of internal regulations for guilds should be respected based on freedom of association, property rights, freedom of contract, and the autonomy of private law. Therefore, even though the disputed provision may constitute differential treatment in substance, because it is not arbitrary it is not in conflict with the principle of gender equity nor does it infringe women’s right to property. However, the Constitutional Court urged relevant government agencies to review the related law to ensure that they are keeping pace with the times, taking into consideration the State’s positive duty to protect women under the Constitution, the principle of stability of law, changes in social conditions, and the adjustment of functions within an ancestor worship guild, so as to conform to the principle of gender equality and the constitutional intent to safeguard the people's freedom of association, property rights, and freedom of contract.



Individual Application of Şükran İrge Constitutional Court (2016)

Custodial violence, Gender discrimination

Şükran İrge directly applied to the Constitution Court claiming that she and her two infants (one four months old and the other two years old) were illegal detained in a penal institution in unhealthy conditions in violation of the constitutional “prohibition of torture and mal-treatment.” The applicant requested the deferral of the execution of her punishment. The Constitutional Court decided that the institution she was held in, Diyarbakir, was not suitable for children or the applicant based on the incidents that Ms. İrge described and the fact that Diyarbakir, as the only penal institution for women in the region, was severely overcrowded. Accordingly, the Constitutional Court ordered the public authorities to take measures to protect the rights and interests of the applicant and her children and left the nature of those measures (i.e. improving the conditions of the penal institution, deferral of the execution of the punishment, or alternative measures) to the discretion of the public authorities. 



Individual Application of M.Y. and E.A.Ö. Constitutional Court (2015)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

Following the divorce of the applicant, E.A.Ö (the mother), and R.Y. (the father), the court gave custody of their daughter to E.A.Ö and limited the father’s visitation rights to certain dates and times indicated by the court.  E.A.Ö took her daughter to a Child and Adolescent Health and Disease Specialist (a psychiatrist) to address issues regarding the child’s aggressive sex-related movements and fears about witches and similar beings. The psychiatrist reported that the child had been a victim of sexual abuse by her father. The applicant filed a lawsuit before the Court of First Instance (family court) requesting that the court terminate the father’s visitation rights citing the evidence that the father might have sexually abused the daughter and might continue to sexually abuse her if he had access to her. E.A.Ö. claimed that the father posed a serious threat to the material and moral integrity of the child as well as E.A.Ö. While she was pursuing this claim, the Prosecution Office decided to not pursue criminal charges against the father citing a lack of evidence regarding the father’s sexual abuse of the child. Based on the Prosecution Office’s non-prosecution decision, the Court of First Instance decided against E.A.Ö leading to her application to the Constitutional Court. While, her application to the Constitutional Court was pending E.A.Ö. filed another lawsuit before the Court of First Instance and did not inform the Constitutional Court about this second lawsuit. In the second lawsuit, the Court of First Instance rendered an injunction decision, which prohibited any contact between the father and the daughter. Subsequently, the Constitutional Court rejected E.A.Ö.’s application because there was no longer any risk of danger to the daughter, since the Court of First Instance had already issued a protective order preventing the father from seeing the child. 



Individual Application of Ayla (Şenses) Kara Constitutional Court (2015)

Employment discrimination, Gender discrimination

The applicant, Ayla (Şenses) Kara, filed a complaint against a male co-worker, H.A., who insulted her. After filing her complaint, the applicant’s employer terminated her employment contract notwithstanding the fact that she had been the one who had been insulted. The Court of First Instance accepted the applicant’s complaint because her employment contract had been terminated “without any valid reason” and ruled that she should be re-hired. The Court of Appeals affirmed the lower court’s decision. Despite being ordered to re-hire the applicant, the employer failed to employ her. The applicant filed a lawsuit before the Court of First Instance to address her employer’s violation of that order. She claimed that she was dismissed as a result of gender discrimination while the male employee who should have been dismissed was allowed to stay on, which was a violation of her rights to equal treatment and a fair trial. The Court of First Instance rejected the lawsuit because it had already ruled on her termination and it was not possible for her to claim compensation based on the same event. The Court of Appeals also rejected her appeal which led to her individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court rejected her claim that her right to equal treatment had been violated because there was inadequate evidence to find discriminatory intent. However, the Constitutional Court held that he right to a fair trial had been violated because of an unjustified judgement. The court found an unjustified judgement in her case because the lower courts had failed to properly assess her claim of gender discrimination. 



Individual Application of Hayriye Özdemir Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özdemir had a child with her husband. After the finalization of her divorce and custody proceedings, gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance accepted the lawsuit on the grounds that the Constitutional Court had invalidated Article 4 of Surname Act, which said that a “the child would carry the surname that the father chose or will choose even if the custody of the child has been transferred to the mother following the divorce.” However, the Court of Appeals reversed the lower court’s decision citing Article 321 of the Turkish Civil Code No. 4721 which states that a child should carry the family name of the father, that a child’s name could only be changed in the father consented or if the child, when he/she reached lawful age, duly petitioned for such a change, and that the transfer of custody to the mother does not give the mother power to change the child’s last name. The Court of First Instance complied with the appellate court’s decision and rejected the lawsuit, leading to Ms. Özdemir’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özdemir the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of the Constitution. 



Individual Application of Mesude Kırıklı and Asil Akça Constitutional Court (2015)

Gender discrimination, Property and inheritance rights

Ms. Kirikli and Mr. Akça (the “Petitioners”) brought a land registration case against their uncle A.S requesting the annulment of a land transfer between their grandfather M.S. and A.S. The Petitioners claimed that M.S. had conducted a dubious transaction where he sold his land to A.S. in return for a very low price in order to prevent his late daughter’s children, the Petitioners, from inheriting the land. The Court of First Instance rejected their case on the grounds that whether M.S.’s motive was to cut his heirs off from their inheritance could not be proven and that it was reasonable that M.S., who had financial troubles at the time, sought to quickly relieve those troubles by selling his only asset for a considerably low price. The Court of Appeals agreed with the lower court, which led to the Petitioners’ application to the Constitutional Court. The Constitutional Court refused to hear the case because of a time limitation.



Individual Application of Gamze Armağan Constitutional Court (2015)

Domestic and intimate partner violence

A.Y. was married to H.Y. A.Y. believed that H.Y. was having an affair with Ms. Armağan. After a fight between the three of them, A.Y. requested a preventative and protective measure for a period of three months against H.Y. and Ms. Armağan because she feared violence from both of them. The competent court granted A.Y.’s request for a preventative and protective measure. Ms. Armağan appealed the protective measure. The Court of First Instance rejected her petition on the grounds that solid evidence regarding the occurrence of incidents or threats of domestic violence is not necessary when granting a preventative and protective measure. Ms. Armağan filed an individual application with the Constitutional Court. The Constitutional Court evaluated the case based on whether the lower courts had infringed Ms. Armağan’s right, under the Turkish Constitution, to a fair trial because of an unjust verdict and judgement. The Constitutional Court ruled that both grounds are inadmissible because (i) individual applications to the Constitutional Court do not serve as an appeal mechanism in order to overturn an undesirable decision of a Court of First Instance; and (ii) the justifications given by the Court of First Instance provided a sufficient basis for the preventive and protective measure in question. 



Individual Application of Nurcan Yolcu Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Yolcu had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision upon appeal, which led to Ms. Yolcu’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court accepted Ms. Yolcu’s claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Yolcu the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that same Constitution. 



Individual Application of Gülbu Özgüler Constitutional Court (2014)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özgüler had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance rejected her petition on the grounds that the transfer of custody to the mother was not grounds for changing a child’s last name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision. After Ms. Özgüler’s individual application, the Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özgüler the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that Constitution. 



Individual Application of Albina Kiyamova Constitutional Court (2016)

Custodial violence, Gender discrimination, Gender-based violence in general

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. The CPPO requested permission from the relevant authority to investigate the officers of the applicant’s treatment. However, the relevant authority denied the CPPO’s request. The applicant appealed the authority’s decision, but her appeal was rejected. She then appealed to the Constitutional Court, claiming that her constitutional right to protection from treatment incompatible with human dignity was infringed. The Constitutional Court partially rejected some of the applicant’s claims due to lack of evidence but accepted her claim that it was unjust for the relevant authority to reject her claims without conducting an investigation.



Individual Application of Özlem Tuncel Kaya Constitutional Court (2016)

Domestic and intimate partner violence

The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence.  The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.



Individual Application of Gülşah Öztürk, et al. Constitutional Court (2016)

Custodial violence, Gender discrimination, Sexual harassment

In response to statements by the Turkish Prime Minister regarding abortion, the applicants demonstrated outside of the Ministry of Family & Social Policies of Turkey. The applicants asked for the Prime Minister and the Minister of Family & Social Policies to apologize for the statements. When police officers told the applicants that the Minister was not present in the Ministry building, the applicants tried, unsuccessfully, to enter the building using force. Following their failed attempt to enter the building, the Applicants headed to the Grand National Assembly of Turkey and blocked the road in front of it.  At this point, the applicants were arrested by police. The applicants allege that during the arrests they were injured and sexually harassed. They were held in custody for seven hours. Medical reports indicate that when they were released, each of the activists had several bruises on their bodies. The Office of Public Prosecutor (the “OPP”) failed to investigate the activist’s allegations of abuse, did not take the testimony of the police officers regarding this incident, and decided to not prosecute this case. The applicants appealed the OPP’s decision claiming gender discrimination, but their appeal was dismissed by the lower court. The Constitutional Court ruled that the force exerted by the police officers while they arresting the applicants was proportionate because the applicants had used force against the police officers. Furthermore, the Constitutional Court concluded that the bruises mentioned in the medical report indicate that police officers only used force to capture the applicants. Because of this, the Constitutional Court found that bruises were not evidence of sexual harassment. This case is important because it demonstrates that the Constitutional Court relies on the medical reports to judge allegations of sexual harassment.



Individual Application of Ferida Kaya Constitutional Court (2016)

Custodial violence, Gender-based violence in general

The applicant, Ms. Kaya, was arrested for alleged political offences. After she was released, she submitted a petition to the Office of Prosecutor General, asserting that she had been subjected to inhuman and degrading treatment while she was in custody. She also claimed that physicians at the state hospital ignored her complaints related to torture and inhuman treatment. After the incident, Ms. Kaya received asylum from Austria in 2002. Concurrently, the Office of Prosecutor General brought an action against the gendarmerie personnel and the physicians who ignored Ms. Kaya’s complaints to address her complaint regarding inhuman and degrading treatment. The trial at the Court of First Instance took about nine years. During that period, the claim against physician was dropped due to the lapse of time. Ms. Kaya was outside of Turkey during the trial. However, she remotely applied to several hospitals in Turkey to get consultations regarding the medical reports that were prepared while she was in custody. All of Ms. Kaya’s medical reports indicated that she showed signs of torture and inhuman treatment. She submitted those reports to the Court of First Instance. In 2011, the Court of First Instance dropped the case as a result of lapse of time. However, the Constitutional Court set aside the Court of First Instance’s decision and ruled that the prolonged trial violated Ms. Kaya’s right to access justice. The Constitutional Court held that Turkey must hold a speedy trial to abide by its constitutional obligation to effectively investigate claims related to torture and inhuman and degrading treatment. This case is important, because it concluded that an insufficient investigation may itself be inhuman treatment. This case should constitute a precedent for the future cases where women are harmed as a result of insufficient and ineffective investigation.