Council of State doesn’t halt execution of withdrawal from İstanbul Convention

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The 10th Chamber of the Council of State has finalized the court cases demanding the stay of execution and annulment of the Presidential decision withdrawing Turkey from the İstanbul Convention ahead of July 1, when the İstanbul Convention will no longer be in force in Turkey, according to the Article 80 of the Convention regarding denunciation.

By a vote of three to two, the 10th Chamber of the Council of State has rejected the requests for the stay of execution and annulment of the Presidential decision, which has pulled Turkey out of the İstanbul Convention, or the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.

Several political parties including the opposition Peoples' Democratic Party (HDP), Republican People's Party and İYİ Party, several civil society organizations and natural and legal persons previously appealed to the Council of State against this Presidential decision.

In the court ruling published on the official website of the Council of State, the "complainant" section has been left empty.

It has been also indicated that after the ruling is notified, an appeal can be lodged against it by applying to the Council of State's Plenary Session of the Chambers for Administrative Cases within 7 days.

3 members: Not against the Constitution

In justifying their decision, three members of the 10th Chamber of the Council of State have argued that the President has the authority to issue a Presidential decree on issues as to the executive power.

They have said that "as it is understood, it is legally possible to withdraw from (annul) international conventions by a Presidential Decree."

Referring to the Article 3/1 of the Presidential Decree no. 9, based on which the related Presidential decision was issued, the ruling has concluded by a majority of votes that the provision of "halting or ending the execution of these" conventions is not against the Constitution.

'It is not within the President's jurisdiction'

İbrahim Topuz, one of the two judges of the 10th Chamber expressing a dissenting opinion, has indicated that it is not within the jurisdiction of the President to withdraw from the İstanbul Convention.

In objecting to the ruling, judge Topuz has referred to the Article 90/1 of the Constitution of Turkey, which says, "The ratification of treaties concluded with foreign states and international organisations on behalf of the Republic of Turkey shall be subject to adoption by the Grand National Assembly of Turkey by a law approving the ratification."

Accordingly, noting that the related action terminating the İstanbul Convention is not within the executive power of the President, but related to the legislative activity of the Parliament, Topuz has concluded that it is not possible to regulate it by a Presidential Decree as per the Article 104/17 of the Constitution, which stipulates that "the President of the Republic may issue presidential decrees on the matters regarding executive power."

'Apply to Constitutional Court for its repeal'

Topuz has also stated that the Article 3/1 of the Presidential Decree no. 9, which regulates "halting or ending the execution" of international conventions, is against the Articles no. 6, 7 and 104/17 of the Constitution, adding that an application for its repeal must be made to the Constitutional Court, considering that it is within the top court's jurisdiction.

'Parliament must pass a law to authorize President'

Topuz has further indicated that in order for the authority to withdraw from the Convention to be within the power of the President, the Grand National Assembly of Turkey (TBMM) must pass a law.

He has also highlighted that the law no. 6251 regarding the ratification of the Convention has not been repealed by the Parliament.

'It is openly against the law'

The other judge of the 10th Chamber of the Council of State who expressed a dissenting opinion to the majority vote is Ahmet Saraç.

In his opinion, judge Ahmet Saraç has stated, "In the event that the execution of the action, which is openly against the law, is not halted, it will lead to irreparable damages; considering this, the execution of the related Presidential Decision must be halted."

What happened?

Turkey has withdrawn from the İstanbul Convention with a Presidential decision published in the Official Gazette on March 20, 2021.

The decision in question said that "the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, which was signed by Turkey on May 11, 2011 and approved with the Cabinet Decree no. 2012/2816 on February 10, 2012, shall be terminated on the part of Turkey as per the Article 3 of the Presidential Decree no. 9."

Following this Presidential decision published at midnight, several social media users, women's rights defenders, lawyers and politicians, denounced the decision, recalling that the convention was unanimously approved at the Parliament and stressing that it is not possible for Turkey to withdraw from an international convention with a Presidential decision.

After the Presidential decision pulling Turkey out of the İstanbul Convention was met with criticisms and objections in both Turkey and around the world, the Communications Directorate of the Presidency released a written statement about the issue on March 22.

"As known, Turkey was the first signatory to the Istanbul Convention," the statement noted, arguing that the "İstanbul Convention, originally intended to promote women's rights, was hijacked by a group of people attempting to normalize homosexuality – which is incompatible with Turkey's social and family values. Hence the decision to withdraw."

The protests are still ongoing. (KÖ/SD)