Women and Justice: Keywords

Domestic Case Law

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.



International Case Law

P.M. v. Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

The applicant was raped at a party in 1991 when she was 13 years old. Her parents informed the police. The criminal proceeding started twice but were both terminated. At the third time of reopening the investigation, both people accused were convicted guilty by the court but relieved due to the expired limitation period. The European Court of Human Rights held that the case was admissible and that the authorities led the investigation ineffectively and slowly, which caused the expired limitation period. There was a violation of Article 3, prohibition of torture, of the Convention for Protection of Human Rights and Fundamental Freedoms.



M. and Others v. Italy and Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

In May 2003, a Roma family with Bulgarian nationality traveled to Italy with a promise of work in a villa. M.’s parents alleged that they were threatened and forced to return to Bulgaria, leaving M.—their 17 year old daughter—in the villa, where she was raped and beaten. M.’s mother returned to Italy on 24 May and reported to the police that her daughter had been kidnapped. M. was rescued from the villa seventeen days later, on 11 June 2003. No criminal proceedings were taken against M.’s kidnapper but the police instituted proceedings against M.’s parents for perjury and libel, believing that the accusations of kidnapping were untrue and that M.’s parents had contracted to marry M. to the alleged kidnapper for a sum of money. The European Court of Human Rights found a violation of Article 3—prohibition of ill-treatment—in the investigation of rape and beating by the Italian authorities, which it ruled was ineffective. The Court found no violation of Article 3, however, in the steps taken by the police to secure the release of M.



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.