1 The Infuence of the International Law on Turkish Constitution and Turkish Constitutional Court’s Case-Law in the Construction of a Legal Landscape in Turkey Asst. Prof. Sami Doğru Cag University/Turkey

2 Presentation Plan Introduction 1. Turkish Constitutional System in History and Today 2. The Place of International Law in Turkish Law 3. The Role of the International Law in the Turkish Constitutional Court’s Decision Conclusion

3 Introduction There is a growing influence of international law on national judiciaries including constitutions: - International agreements, - International tribunals, - National courts are tending to increase their recourse to international instruments.

4 Introduction No constitution today is an island itself. International conventions, customs and judgements Municiple law including constitution. IMPACTS

5 Introduction International conventions affects the Turkish constitutional system through two distinct paths: - Some of the constitutional provisions are rooted in the conventions. - The Conventions and the ECHR guide the interpretation of domestic law in courts.

6 Turkish Constitutions 1. The Ottoman Period The 1876 Constitution 2. The Turkish Republic Period The 1921 Constitution The 1924 Constitution The 1961 Constitution The 1982 Constitution

7 Turkish Constitutions 1. The Ottoman Period: 1876 Constitution - Promulgated in Recognized a parliamentary system. - Has provisions covering basic rights and privileges, the independence of courts and the safety of judges, - With the amendment in 1909 converted into constitutional monarchy

8 Turkish Constitutions 2. The Turkish Republic Period The 1921 Constitution - Short (23 articles) but very important document. -All authority was vested in Parliament itself. - Form of the state defined as “Republic”. - Sovereignty belongs to the Nation

9 Turkish Constitutions 2. The Turkish Republic Period The 1924 Constitution - Principle of national sovereignty. -The authoritarian leadership and strong party discipline reduced the Assembly to a secondary role. - On 27 May 1960, units of the Turkish Armed Forces overthrew the government.

10 Turkish Constitutions 2. The Turkish Republic Period The 1961 Constitution - Products of military interventions - Parliamentary system. -Accepted separation of powers principle -Full freedom and independence of the courts - Established a Constitutional Court

11 Turkish Constitutions 2. The Turkish Republic Period The 1982 Constitution - At the begin contained severe defects, which rendered it hardly compatible with universal democratic norms. -But has been amended 17 times: * Significant improvements in fundamental rights and liberties, political rights, the rule of law. * From 1999 EU membership process has had an impact on constitution. * Turkey is increasingly being Europeanized.

12 The Place of International Law in Turkish Law State constitutions generally recognize the primacy of international law. There are four factors: 1. The need to establish a liberal rule of law. 2. The integration of states within the EU and within other international organizations. 3. New international institutions with far-reaching powers, such as the ICC. 4. International community have been supervising regime changes and installed new state constitutions.

13 The Place of International Law in Turkish Law Turkisch Constitution also referes; - ‘international law’, - ‘international customs’ and - ‘general principles of law’ in four different articles (15, 16, 42, 90 and 92). These references came in to force with the effect of international conventions including ECHR minimizing the human rights violations.

14 The Place of International Law in Turkish Law Suspension of the Exercise of Fundamental Rights and Freedoms Article 15(1) - Restrictions of fundemantal rights and freedoms guaranteed in the Constitution should conform with the international law all the time.

15 The Place of International Law in Turkish Law Status of Aliens Article 16: - “The fundamental rights and freedoms of aliens may be restricted by law in a manner consistent with international law”.

16 The Place of International Law in Turkish Law Declaration of State of War and Authorization to Permit the Use of Armed Forces Art 92(1): The Power to authorise the declaration of a state of war in cases deemed legitimate by international law and except where required by international treaties to which Turkey is a party or by the rules of international courtesy to send Turkish Armed Forces to foreign countries and to allow foreign armed forces to be stationed in Turkey, is vested in the Turkish Grand National Assembly.

17 The Place of International Law in Turkish Law Right and Duty of Training and Education Art. 42: -Regulating the right to education also stipulates to “international treaties”.

18 The Place of International Law in Turkish Law Characteristics of the Republic Art. 2: The Republic of Turkey is a democratic, secular and social State governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; …

19 The Place of International Law in Turkish Law The Turkish Constitutional Court should take into account international law None of the state bodies can act against the agreements and treaties which are approved by the State and binding ‘pacta sunt servanda’

20 The Place of International Law in Turkish Law Ratification of International Treaties Art. 90(5): International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.

21 The Place of International Law in Turkish Law International human rights agreements are superior over domestic laws. According to Turkish Constitution.

22 The Role of the International Law in the TCC Decisions The Turkish Constitutional Court was established by the 1961 Constitution. It exercises a posteriori control of the consistency of the laws with the Constitution.

23 The Place of International Law in Turkish Law The primary function of constitutional courts is to protect fundamental rights and freedoms against state actions. The principles of international law maybe are a very handy tool for constitutional courts to extend the scope of rights and freedoms. It is possible to extend freedoms by the way of interpretation of constitution in accordance with the principles of international law.

24 The Place of International Law in Turkish Law After the constitutional amendments in 2010: - Composition, powers and structure of the Court were changed. - Authorized to conclude and finalize the individual applications. - Constitutional jurisdiction review has been implemented against the infringements of rights caused by persons or institutions exerting public authority. -The judgments have increased the international recognition of its successful performance with regards to promoting the rule of law, fundamental rights and freedoms and democracy in Turkey

25 Judgements of the Turkish Constitutional Court a. Judgement on the Right to Liberty and Security of Person, Freedom of Expression and the Press in Erdem Gül and Can Dündar Application. Cuhuriyet daily's two journalists Can Dündar and Erdem Gül were arrested last year after publishing a controversial report regarding the National Intelligence Organization.

26 Judgements of the Turkish Constitutional Court They accused of; - spying and “divulging state secrets”, - as well as being members of a terror organisation. Another charge included the violation of state security after the release of the footage.

27 Judgements of the Turkish Constitutional Court They objected to the said decision on their detention, however, such objections were dismissed. Upon the rejection of their objections, Dündar and Gül lodged an individual application to the Constitutional Court..

28 Judgements of the Turkish Constitutional Court The Constitutional Court ruled in its judgment regarding the alleged violation of freedom of expression and press and unlawful detention that; - the applicants’ right to personal liberty and security and freedom of expression and press were violated and - also that the judgment be referred to the relevant Court for the removal of the violation.

29 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman Article 187 of Turkish Civil Code: - A woman takes her husband's surname after marriage. - But after marriage, with a written application to the census bureau or marriage official, she can use her maiden surname before her husband's surname. This regulation is against the Art. 10 of the Constitution which states that «men and women have equal rights»

30 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman In Ünal Tekeli-Turkey case, the ECtHR has concluded that the married woman can use her maiden surname alone.

31 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman Individual application to the Constitutional Court relating to surname of the married women Gülsim GENÇ

32 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman Gülsim GENÇ alleged that; - her rights defined under articles 10, 12, 17 and 90 of the Constitution were violated, and - requested the determination of the violation and the compensation of the damage she incurred.

33 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman The Constitutional Court in its judgment applicants wishing to use their own surnames was accepted.

34 Judgements of the Turkish Constitutional Court b. Surname of the Married Woman Following ECtHR and Turkish Constitutional Court decisions A legislative proposal Turkish Grand National Assembly

35 Conclusion International law with conventions and judgments affect Turkish Constitution and the decisions of the constitutional court. It enforced our legislator to revise municipal law in the construction of a legal landscape in Turkey.

36 Thank for your attention you!