Women and Justice: Jurisdiction

Domestic Case Law

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.



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.