Women and Justice: Court: Constitutional Court of Turkey

Domestic Case Law

Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836 Constitutional Court of Turkey (2015)

Gender discrimination

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.



The Judgment of the Constitutional Court of Turkey: Head-scarf Ban Constitutional Court of Turkey (2014)

Gender discrimination

The phrase “bare-headed” in Article 20 of the Code of Conduct, which entered into force on 26 January 1971 by the decision of the Union of Turkish Bar Associations, abolished on 5 November 2012 with the decision of the Council of State, number 2012/5257. After that, Tu?ba Arslan, who is a lawyer admitted to the Ankara Bar Association, started to attend to hearings while her headscarf is on. On 4 December 2012, Ankara 11st Family Court’s judge stated that Tu?ba Arslan cannot perform her profession while her headscarf is on and adjourned the hearing on the grounds that headscarf is a strong religious and political symbol of anti-secularism. On that occasion Tu?ba Arslan applied to the Constitutional Court of Turkey individually. In its judgment of 25 June 2014 the Constitutional Court examining the case found that the acts of the public power that impose restriction on the location and style of the right to wear a headscarf as a religious belief constitute a violation of freedom of thought and faith. In addition, the Constitutional Court observed that wearing a headscarf is neither constitute an impediment to the use of the rights and freedoms of others nor trigger a social conflict or tension, therefore Tu?ba Arslan decreased at a disadvantage compared to those not wearing headscarf and that constitute a violation of prohibition of discrimination.



Case Number E.2006/156, K.2008/125 Constitutional Court of Turkey (2008)

Gender discrimination

The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.



Case Number E.2005/151, K. 2008/37 Constitutional Court of Turkey (2008)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.



Case Number E.1999/35, K.2002/104 Constitutional Court of Turkey (2002)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.



Case Number E.1999/27, K.1999/42 Constitutional Court of Turkey (1999)

Divorce and dissolution of marriage

Article 237.4 of the Turkish Criminal Code provides for a penalty of two to six month imprisonment if a man or woman holds a religious wedding ceremony before a civil ceremony. Under Turkey’s principle of equality, different individuals with different legal statuses may be treated differently. The Constitutional Court found that the statute does not violate the principle of equality because unmarried individuals have a different legal status than those who have conducted a religious wedding ceremony. In reaching its decision, the Court also noted that legislature has discretionary power to make laws, the Constitution provides for the protection of family life, and the statute does not prohibit religious ceremonies entirely.