Women and Justice: Keywords

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.



International Case Law

P. and S. v. Poland European Court of Human Rights (2012)

Sexual violence and rape

The applicants, P. and S., were daughter and mother. P., a fourteen-year-old girl, was raped and impregnated by a classmate. Abortion in Poland is available in the case of rape so in May 2008 P. received a certificate from the public prosecutor to allow her to get a legal abortion in Poland. She went to three hospitals who refused to perform the operation: one brought her to a Catholic priest—who urged her not to get an abortion—without her permission. Hospital officials issued a press release after which anti-abortion campaigners harassed P. A criminal proceeding against P. on suspicion of sexual intercourse with a minor was initiated in July 2008 but later terminated, the court finding that P. could only be considered a victim, not a perpetrator. The police then alleged that S. was trying to coerce P. into having an abortion, leading to the authorities removing P. from her mother’s custody and placing her in a juvenile shelter. The Minister of Health intervened and P. got an abortion without being an officially registered patient or receiving any post-abortion care. The European Court of Human Rights held that there was a violation of Article 8: right to respect for private and family life. The Court found that the state should ensure people’s legal rights are facilitated by procedures to fulfill those rights. The Court also found that the hospital press release of information led to interference with the applicants’ lives. The Court held that there was a violation of Article 5(1) because the separation of P. from her parents was taken to prevent abortion rather than within in the purpose of the Article, which is for educational supervision. Finally, there was a violation of Article 3: the difficulties P. met in seeking abortion and subsequent trial for intercourse with a minor constituted ill treatment.