Turkey withdrew from the Istanbul Convention taking into effect on 20th March 2021 through a Presidential Decree. The decision was heavily criticized by Bar Associations and NGOs, and many women’s organizations made statements that they did not recognize it. More than 200 lawsuits have been filed in the Council of State, the highest court for the administrative cases in Turkey, claiming that the presidential decision to withdraw was unlawful and is to be annulled. The hearings of 10 of these lawsuits were held on 28th April 2022 in front of the 10th Chamber of the Council of State. Among the plaintiffs were 29 October Women’s Association, Health and Social Service Workers’ Union (SES), Ankara Bar Association, Tekirdag Bar Association, and Serap Yazıcı who is a professor in constitutional law. More than a thousand female lawyers participated in the cases with a license of authorization. Three lawyers were allowed to make a defense for each plaintiff. Hundreds of lawyers from all over Turkey were present at the hearing held in the great hall with the initiatives of the Union of Turkish Bar Associations: the 550-person hall was packed with lawyers and women NGO’s members and supporters. At the very beginning of the hearing, the president of the Court highlighted that this case was the most crowded in the history of the Council of State.
The main argument raised by the plaintiff’s lawyers during the hearing focused repeatedly on the constitutional unlawfulness of the Presidential Decree. While the defendant party stated that there are many different procedures for leaving international conventions and that many international conventions were withdrawn before with the Presidential Decree, the plaintiff’s lawyers argued that the decision to withdraw from the Convention, whose ratification and entry into force was approved by the Turkish Parliament with the Law No. 6251, can only be made by a law to be enacted by the Grand National Assembly of Turkey, in accordance with the principle of parallelism in authority and procedure.
In this regard, it has been stated that the executive’s lack of authority is crucial, and that no authority can self-recognize a power, when the Constitution does not entitle for it. In addition, the legitimacy, form, reason, subject, and purpose elements of the administrative act were discussed, and it was stated that, although public interest had been invoked as the reason of the Presidential Decree, no such public interest could be at the basis of the withdrawal of the Istanbul Convention. It was reiterated that the President of the Republic does not have the authority to terminate or withdraw from the international conventions regarding fundamental rights and freedoms duly put into effect. In his speech on behalf of the Ankara Bar Association, the President of the Union of Turkish Bar Associations, Erinç Sağkan, stated that: “It is against the law to withdraw from the Istanbul Convention by the President’s decision. The decision you will make here today is a big and historic one. If the Istanbul Convention is exited today, when we wake up one morning, it may be possible to exit the European Convention on Human Rights with the Presidential decision. The decision to be taken should be made with this situation in mind”. He observed that the decision to be taken will be a building block on whether the rule of law or the law of superiors will be applied in Turkey. The lawyer of the plaintiff Hülya Gülbahar said, “Our life is not exported potatoes or tomatoes. The constitution is very clear. Agreements on fundamental rights are concluded by the decision of the Assembly. We want a positive decision today”.
The Prosecutor of the Council of State, Aytaç Kurt, supported the plaintiff’s lawyers and stated in his written opinion, arguing that: “Law No. 6251 on the approval of the Convention –which was terminated by the President’s decision, which is the subject of the lawsuit– has not been repealed by the Grand National Assembly of Turkey. Moreover, no new law has been enacted regarding the expiry of the ratification before the President’s Decision is taken. For this reason, it has been concluded that the presidential Decree, which is the subject of the case, is not in compliance with the law in accordance with the principle of parallelism in authority and procedure.” He also observed that the abolition of an international agreement that is subordinate to approval of the Grand National Assembly of Turkey would be possible only at the discretion of the Turkish Grand National Assembly. He concluded that the decision to withdraw the Istanbul Convention was not in accordance with the law and called for the decision to be quashed. The Prosecutor’s opinion was received with great joy by the female lawyers and women’s rights advocates present in the hall. The women gave the prosecutor a standing ovation.
After having received the Prosecutor’s opinion, the Council of State is expected to take the decision in the coming weeks.
*F. Esra Yildiz is Law Master Student at Istanbul University, Faculty of Law & Lawyer at Istanbul Bar Association