20 Mart 2021’de Resmi Gazete’de yayınlanan “İstanbul Sözleşmesi’nin Türkiye bakımından feshedilmesine” ilişkin Cumhurbaşkanı kararının ardından, İstanbul Barosu Başkanlığı, Avrupa Konseyi ve Avrupa Baroları Hukuk Birlikleri Konseyi (CCBE) ile kurumsal üye statüsünde üye olduğu Avrupa Barolar Federasyonu (FBE), Uluslararası Avukatlar Birliği (UIA) ve Uluslararası Barolar Birliği (IBA)’ne bir yazı göndererek İstanbul Sözleşmesi’nden geri çekilme kararının Anayasa’ya aykırı olduğunu bildirdi.
İstanbul Barosu Başkanlığı’nca, İstanbul Sözleşmesi'nden çekilme ile ilgili Cumhurbaşkanı kararının iptali için Danıştay'da dava açıldığı belirtildi. İstanbul Barosu Başkanı Av. Mehmet Durakoğlu ve İstanbul Barosu Başkan Yardımcısı Av. Nazan Moroğlu imzalı yazıda, İstanbul Sözleşmesinden Cumhurbaşkanı kararı ile geri çekilmenin Anayasaya aykırı olduğuna ayrıntılarıyla yer verildi.
Avrupa Konseyine e-mail ve posta yoluyla gönderilen yazının metnine aşağıda yer verilmiştir:
On 20th March, 2021, a decision of the President of Turkey was issued in the Official Gazette announcing the withdrawal of Turkey from the Council of Europe Convention on the Prevention and Combatting Violence against Women and Domestic Violence- the Istanbul Convention.
In accordance with article 90 of the Constitution of the Republic of Turkey (hereinafter will be referred to as ‘the Constitution’), the Istanbul Convention was approved unanimously by all the MP’s of all the parties in the Grand National Assembly of Turkey by Law No. 6251 on 24 November 2011; it is the result of the national will. In accordance with Article 90 of the Constitution, the International Treaties on Fundamental Rights and Freedoms, duly put into effect, have the force of law, and are even above the laws in the hierarchy of norms, meaning the provisions of the international agreements shall prevail.
It is a clear provision of Article 104 of the Constitution that “The fundamental rights, individual rights and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution shall not be abolished or regulated by the decision of the President”.
The Istanbul Convention IS DIRECTLY AND INDIVIDUALLY RELATED TO FUNDAMENTAL RIGHTS AND FREEDOMS stipulated under Articles 15 and 17 of our Constitution, which are "the individual’s right to life, the integrity of his/her corporeal and spiritual existence ", "Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence", "No one shall be subjected to torture or mal-treatment”. Therefore, in accordance with Article 104 of the Constitution, this presidential decision violates the law to issue a decision of the President regarding the fundamental rights and freedoms included in the Constitution.
Ignoring the will of the Grand National Assembly of Turkey, in other words the will of the nation, the decision of the President related to the withdrawal from the Istanbul Convention, to which Turkey has been the first signatory and ratifying state, is contrary to the Articles 87 and 90 of the Constitution and it is unconstitutional. In summary, the decision of the President to withdraw from the Istanbul Convention has no basis in the Constitution. Withdrawals from international conventions must follow the national procedures and processes that were followed when signing and ratifying those conventions.
In this sense, the Presidential Decree dated 15.07.2018 and numbered 9, on which the decision of the President is based, is also explicitly unconstitutional, and null and void. In accordance with Article 6 of the Constitution, "No person or organ shall exercise any state authority that does not emanate from the Constitution”.
The withdrawal has been criticized and found to violate the Constitution, not only by the bar associations, but also by the women NGO’s and the opposition parties in Turkey. The Presidency of Istanbul Bar Association applied to the Council of State demanding the overruling of this decision.
The fundamental principle of the Council of Europe, which Turkey is a founding member of, is to uphold human rights, democracy and the rule of law. Istanbul Bar Association firmly believes that the Council of Europe, though not under the obligation to question the decision of Turkey to withdraw from the Convention in accordance with Article 80 of Istanbul Convention, will review the process and observe the legality of this decision considering its possible overruling by the Council of State.
Atty. Mehmet Durakoğlu Atty. Nazan Moroğlu, LL.M.
President of Istanbul Bar Association Vice-President of Istanbul Bar Association