“We have been waiting for a year. Women are sent from police stations. As this case drags on, women lose their lives and children are abused. Even a single day is very important to us. There is a legal and political problem. Make your decision”
Lawyer Hülya Gülbahar addressed the 10th Chamber of the State Council in Ankara with these words. State Council Chairman Yılmaz Akçil looked at the women, lawyers and civil society representatives who filled the 600-person hall and said, “This is a first in the history of the State Council. State, we are holding such a crowded hearing for the first time.” This readiness against Turkey’s decision to withdraw from the Istanbul Convention obviously surprised the delegation. Journalists sent news from the room minute by minute. I quote these words of the journalist Sibel Yukler.
“We worked with the government at the time for the Istanbul Convention and Law No. 6284. This contract was prepared with the collaboration of the whole company. We wrote 6284. The delegation has a legal problem like the Articles 90 and 87 of the Constitution are set aside with this decision,” Gülbahar said in her defense as a plaintiff.
“We worked not only on the Nahide Opuz case, but also on the decisions of previous and subsequent cases. The State of the Republic of Turkey has appointed Feride Acar to the expert council of the Istanbul Convention. We are talking about the domestic and national contract that we have made so much effort. So there is also a political problem,” he added.
Why at the Council of State?
The Council of State acts as a superior jurisdiction in the decisions rendered by the courts, namely the administrative courts, which control the legality of the transactions and acts carried out by the public administrations. It examines and decides on appeals against decisions rendered by the administrative courts. You can ask; So, what are women’s associations, lawyers, representatives of the bars at the Council of State doing, what we usually see during follow-ups of feminicides before the criminal courts? Why is this case important?
Because women oppose the decision of the Presidency, which is a public administration, to withdraw from the Istanbul Convention.
The Council of Europe Convention on preventing and combating violence against women and domestic violence, prepared by the Council of Europe, namely the Istanbul Convention, is an international convention signed by the European Union and 45 countries in 2011. Turkey ratified this convention, of which it was the first signatory, the same year, and was the first country to ratify it. Based on this agreement, Law No. 6284 on protection of the family and prevention of violence against women was drafted and entered into force with the participation of non-governmental organizations. This happened in the legislative body, the Assembly.
10 years later, in March 2021, the Istanbul Convention ended with the signature of President Recep Tayyip Erdoğan. In the year that elapsed after this decision, many associations, lawyers, legal persons and individuals filed more than 200 lawsuits because of the unconstitutionality of this decision. The Council of State met to consider 10 of these cases on April 28.
unconstitutional, crippled by poverty
Let’s go back to the words of Hülya Gülbahar. Article 90 of the Constitution states that “the ratification of agreements to be concluded with foreign states and international organizations on behalf of the Republic of Turkey depends on the approval of the Turkish Grand National Assembly by law”, while the Article 87 of the Grand National Assembly requires the approval of international agreements among its duties and powers.
Turkey moved to the presidential system of government with the referendum held in 2018 and the amended constitution came into effect. With the new constitution, the executive powers that had previously been vested in the prime minister were vested in the president, but “on matters regulated by special laws, on matters clearly set forth in law, a presidential decree cannot be issued, and in cases where they conflict with laws, the provisions of the law are enforced.In addition to this, when the Turkish Grand National Assembly promulgates a new law on a subject that was previously regulated by a presidential decree, the decree becomes void and void.
The objection arises on these two points. The plaintiffs argue that the decision to exit from the Istanbul Convention, which is an international convention and approved by the parliament, can always be taken by the parliament, otherwise it would be unconstitutional, and ask for a stay of execution and the annulment of decision.
Ankara Bar Association President Erinç Sağkan also highlighted this point in his speech on behalf of the plaintiffs and said, “We cannot accept the termination. What we need to discuss is whether Article 3 of Presidential Decree No. 9 is legal or not. We are of the opinion that the obligations related to this article are invalid due to a lack of authority. This decision is paralyzed by absence. It also shows that tomorrow another international convention can be released,” he said.
The State Council prosecutor agrees with the women, what will happen now?
After the defenses, State Council Prosecutor Aytaç Kurt expressed his opinion and said that an international agreement subject to the approval of parliament can only be terminated with the approval of parliament and that the withdrawal decision is illegal. Loads reported that applause broke out in the room. The social media shares of those who were there dropped one by one, and we saw the videos of the applause.
If you are wondering what will happen after this decision, only the opinion of the prosecution has been given for the moment. The decision will be announced in writing within one month. The decisions of the Council of State are binding and final; however, an objection may be lodged with the Administrative Affairs Chambers of the Council of State against this decision of the 10th Chamber. Now all eyes are on the House’s decision.
Turkey discusses shrinking political space. The defense of rights has moved from the civil society movement, first to the courts, then to the Supreme Court, and finally to constitutional debates, which is the founding element of a country. Now, a law prepared for the protection of a fundamental right as well as the right to life and an international agreement signed with this motive are discussed on a fundamental element like the Constitution. Therefore, the will expressed by those who filled the hall of the Council of State is a reflection of the will of all the vulnerable groups who are killed every day and who are at risk of being killed. At the same time, it is a beacon of hope for the enlargement of the political space, which is shrinking every day. The legitimate reason to make the voice heard in an administrative earthquake where the defense of rights is brought before the Council of State.
Gülbahar said, “There is not a single day to lose”, and quote the words of lawyer Ceren Kalay: “There is such a thing as a memorial counter in this country, you can look at the murdered women of the.