Turkey’s Withdrawal from the Istanbul Convention: A Worrisome Picture for Women’s Rights and the Constitutional System
The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, mostly referred to as the Istanbul Convention, is the first legally binding instrument in Europe to prevent violence against women. Turkey signed the Istanbul Convention on 11 May 2011 and was the first country to ratify the Convention on 14 March 2012. The Parliament of Turkey ratified the Convention unanimously, and on 8 March 2014 (International Women’s Day), the Law on the Protection of the Family and Prevention of Violence Against Women (Law No. 6284) was passed to incorporate the Convention into domestic law.
Since its enforcement, the Turkish President’s party and conservative groups have argued that the Convention damages family structure, encourages divorce and is used by the LGBT community to gain broader acceptance in society, given its references to non-discrimination on grounds of sexual orientation. However, a withdrawal from the Convention has never been largely supported by society. According to a 2020 survey by Konda, a respected polling company, only 7 percent of respondents favored a withdrawal from the Convention. On the other hand, since last year, rights group have taken to the streets across the country, calling on the government to apply the Istanbul Convention more effectively.
According to the latest National Research on Violence against Women from 2014, 38 percent of women in Turkey have been subjected to violence in their lifetime, compared to about 25 percent in Europe. Furthermore, due to social isolation, restrictions and economic insecurity, the COVID-19 pandemic has led to a further increase in violence against women. Unfortunately, at least 400 women were killed in Turkey only last year during this rise in femicide, and the number is already 118 in 2021.
However, despite rising murders of women in recent years, a Presidential Decision announced Turkey’s withdrawal from the Istanbul Convention on 20 March 2021, in the middle of the night. The decision was taken without any debate in Parliament and no reason was provided. The publication of the decision on early Saturday sparked anger among rights groups and was met by large protests in Istanbul. Women’s organizations have called the President to reverse his decision to withdraw from the Convention and they urged the Council of Europe to act. Some women even have filed individual lawsuits calling for an annulment of the decision.
The withdrawal decision is considered unconstitutional by lawyers and academics, as the President’s Decision usurps legislative powers. The withdrawal relies on Presidential Decree No. 9 in which the President granted himself the right to terminate treaties. However, Decree No. 9 itself is not in accordance with the Constitution because Article 104 which sets out the executive power of the President, grants an authority to the President to issue Presidential Decrees only on executive matters. However, withdrawing an international treaty is a legislative matter. According to Article 90 of the Constitution, ratification of an international treaty is subject to adoption by the Parliament by a law approving the ratification. After Parliament passes the law, the President can exercise his executive power to approve and publish the treaty under Article 104/11 of the Constitution. Since there is no provision regarding withdrawal from treaties in the Constitution, it should be the Parliament’s power to withdraw from a treaty, in light of the principle that anything is dissolved in the same way it is entered into (Unumquodque eodem modo quo colligatum est dissolvitur). The legislative nature of a withdrawal decision becomes even more clear considering Article 90/5 of the Constitution which states that international agreements duly enacted have the force of law, and that international agreements concerning fundamental rights and freedoms (such as the Istanbul Convention) shall prevail over contrary law. Hence, the President cannot exercise legislative powers under the separation of powers enshrined in Article 7 of the Constitution, and the withdrawal decision, as well as its basis, Decree No. 9, are unconstitutional and void.
Withdrawing from the Istanbul Convention is a huge setback to women’s rights, but also paints a worrisome picture for the constitutional system. According to some authors, the only way to annul the unconstitutional Presidential Decision is by any person with an interest filing a lawsuit before the Council of State (Article 24 of the Law No. 2575) and requesting the cancellation of the Presidential Decree. If the Council of State finds merit in the raised claims, or itself finds the decision unconstitutional, the claims shall be brought before the Turkish Constitutional Court, which can review and cancel the unconstitutional Presidential Decree.