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I.
The Constitution
The 1982 Constitution,
which is currently in force, provides for a full equality between
men and women. Excluding certain specific articles, non-discriminating
concepts such as “everyone, whoever, no one” have been used. In
addition to this equality approach of the Constitution, the “principle
of equality” has been secured under Article 10. This article stipulates,
“All individuals are equal without any discrimination before the
law, irrespective of language, race, color, sex, political opinion,
philosophical belief, religion and sect, or any such considerations”.
Several appeals
have been made to the Constitutional Court on the grounds that several
articles of the Civil Law and the Criminal Law contained provisions
constituting a discrimination against women. The court has rejected
several of these appeals on the grounds of breach of Article 10,
which arranges equality in the Constitution.
The gender criteria
stipulated in the equality principle of Article 10 of the Constitution
is emphasized with repetition in various articles and certain articles
contain provisions for the protection of women. For instance, Article
41 stipulates, “The family is the foundation of Turkish society.
The State shall take the necessary measures and establish the necessary
organization to ensure the peace and welfare of the family, especially
the protection of the mother and children, and family planning education
and its application.”
Article 42,
arranging the right and duty of education and training, repeats
equality in terms of sex by stipulating that primary education is
compulsory for all citizens of both sexes. Article 50, included
in the section containing labor-related provisions, which arranges
the working conditions and the right to rest, emphasizes equality
in terms of sex with the provision that No one shall be required
to perform work unsuited to his/her age, sex, and capacity, and
the same article stipulates that minors and women shall enjoy special
protection with regard to the working conditions.
Significant
steps have also been taken in terms of equality between men and
women within the framework of the Constitutional modifications.
The first one is the inclusion of the wording “and is based on equality
between the partners in marriage” after “family is the foundation
of the society” in Article 41.
Another amendment
has been in the form of deletion of the second sentence of “The
citizenship of a child of a foreign father and a Turkish mother
shall be defined by law.” from the second subparagraph of Article
66 of the Constitution. Said changes have come into force as of
October 17th, 2001.
As it is known
a new equality approach called “positive discrimination” or “temporary
special measures” has been referred to in the “Convention on Elimination
of All Forms of Discrimination Against Women” (CEDAW) and the Fourth
World Conference on Women. Although the equality between men and
women is secured by the Constitution, there are opinions to the
fact that the equality of women against the normative law does not
necessarily provide for an actual equality in all cases. In line
with this approach, Directorate General on the Status and Problems
of Women is continuing its activities related with a bill to amend
Article 10 of the Constitution. Constitutional grounds shall be
provided for the subsequent legal amendments by means of inclusion
of the term “temporary special measures” into the Constitution.
Inclusion of
a term stipulating a positive discrimination in Article 10 shall
facilitate realization of the legal amendments required for application
of a quota especially in terms of participation to politics.
II. Civil Law
Revolutions
realized subsequent to the foundation of the Republic have brought
fundamental modifications in the legislative field. Most significant
of these has been the “Turkish Civil Law”, providing substantial
rights for women. The civil law has been elaborated on the model
of the Swiss Civil Law on February 17th, 1926. The law has provided
radical changes in terms of gender equality and served towards approach
of woman to modern standards by opening the way. However, the Civil
Law which has not undergone substantial reforms in line with the
developments in time, has become inefficient in certain issues and
the on-going reform activities since 1935 has formed the new Turkish
Civil Law enacted on January 1st, 2002. Changes imposed by the new
law are as follows:
The former law
provided for head of the family and the husband was considered as
the head of the family. The New Civil Law has annulled the family
head practice and stipulates that the couple shall manage the marriage
union together.
The former law granted the right to represent the family union to
husband (women also had power of representation in certain issues).
The new law grants the power of representation to the couple.
The provision that the house selection shall be made by the husband
has been amended and it has been stipulated that the house of residence
shall be selected together by the couple.
The previous amendment (enacted in 1997) providing for the use of
the maiden name before the surname of the husband has also been
adopted in the new law.
The provision in the former Civil Law that the custody of the children
shall be exercised jointly and that the vote of the father shall
be superior in case of a dispute has been amended and it has been
stipulated that the spouses shall exercise the custody rights jointly.
Judges shall decide in case of such disputes.
The new Civil Law provides that the vocational and professional
selection of the spouses shall not be subjected to the consent of
the other spouse. With this arrangement the spouses shall be able
to continue their profession without obtaining the consent of the
other spouse. (In fact, the provision in Article 159 of the former
Civil Law stipulating that the consent of the spouse shall be required
for a women to conduct professional activities and work, has been
annulled by the Constitutional Court in 1990.)
While “Separation of property” was the applicable legal property
regime in case of no any other regimes being selected as per the
former Civil Law, the New Law stipulates the regime of “right to
participate in the acquired properties”. Instead of the separation
of property where each spouse maintains the ownership of properties
registered to his/her name, the properties acquired by each spouse
against their fees following the act of marriage shall be shared
on equal basis by spouses upon termination of the marriage provided
that they did not selected any other regime as per the new regime.
Personal belongings shall remain under the possession of the owner.
While the husband was responsible for the subsistence of the household
and children, the new Civil Law stipulates that the spouses shall
contribute to the expenditures of the marriage union pro rata to
their labor capacity and assets.
The legal marriage age of woman has been increased to constitute
gender equality. The marriage age for minors has been arranged as
17 years with parental permission and 16 with a court decree (Whereas
in the former law the legal age has been arranged as 17 for the
men and 15 for women with parental permission; and 15 for men and
14 for women with a court decree.)
While the previous place of application for marriage has been the
related marriage office of the husband place of residence, the new
Law arranges the related marriage office of the husband’s or wife’s
place of residence.
As per the general provisions, the related court of the defendant’s
place of residence has been arranged as the authority for institution
of suits for alimony. The new law authorizes the related court of
the plaintiff’s place of residence.
The new Civil Law has also brought significant changes in terms
of adoption of a child. The requirements of “those over the age
of 30 and those who do not have any children can adopt children”
has been annulled.
Establishment of Family Courts has become necessary with the enforcement
of the new Civil Law and the new bill elaborated for this purpose
has been submitted to the Turkish Grand National Assembly.
III. Change in Identity Cards
It has been
determined that terms such as “divorced, widow, marriage terminated”
used on the identification cards caused a disturbance in terms of
women due to the social prejudices. Accordingly, subsequent to the
actions realized, it has been ensured that only the terms “married”
or “single” shall be used in the “marital status” of the identification
cards. This amendment has ended the disturbances caused in terms
of women with the terms such as “divorced, widow, marriage terminated”.
Actions required to ensure that the same principle is applied in
all kinds of identifications (driving license, corporate identification,
diploma etc.) issued by all official departments have been completed.
IV.
Family Protection Law
Violence against
women is observed at high rates around the world. Just as so, nearly
all violence against women is encountered on domestic basis in Turkey.
Prior to the enactment of the specific law, all domestic acts of
violence were assessed on the basis of the general provisions of
the criminal law. This caused numerous difficulties. Due to the
family life being considered as private, difficulties were encountered
in terms of determination and punishment of acts of violence in
this field in a short period, as required. Efforts to apply the
general provisions on violence in terms of the domestic acts of
violence were inefficient in terms of the reduction and cease of
violence. The Law on Protection of the Family has been enacted on
17 January 1998 due to the requirement of a specific arrangement
on this issue.
These include
measures for removal of the person applying violence from the joint
place of residence, apprehension of the weapons of the person applying
violence on the grounds of said weapons constituting a means for
violence and threat, provision of a “precautionary alimony” by the
person applying violence for the subsistence of other family members,
non-disturbance of the family members by communication means and
prevention of damage to the household goods. An imprisonment of
3 to 6 months has been foreseen for actions in breach with these
measures. This law shall become applicable on the personal application
of those suffering violence, those witnessing or having knowledge
of such violence or direct intervention by the police. Measures
applicable pursuant to this law cannot exceed 6 months.
V.
Criminal Law
The Criminal
Law has been enacted in 1926. Actions are continued on a bill for
the modifications of the Criminal Law as a whole.
Although the Criminal Law does not entail discrimination in general,
it is being criticized by the public opinion in terms of provisions
related with women and sexual offences against women. The section
arranging such kinds of offences is titled "Adab-ż Umumīye
ve Nizam-ż Aile Aleyhine Cürümler" (Felonies against Public
Decency and Family Order). It is alleged that this title serves
to the approach of the protection of the general ethics and the
family order rather than the prevention of violence against women
and the elimination of the violation of the fundamental human rights
of women. The approach which reveals itself in the title is also
dominant in the articles. The working and essence of the articles
are based on the protection of the general ethics and the rectitude
of the relatives of women rather than the protection of women’s
rights. These criticisms are planned to be addressed in the draft
of the Criminal Law.
There are differences
in terms of elements of the offence, requirements and stipulated
penalties between men and women in articles related with adultery
in the Turkish Criminal Law. The Constitutional Court, assessing
an application on the grounds of a case based on this issue, which
is causing a disturbance in the public opinion, has revoked the
articles arranging the offence of adultery for men and women. As
per said revocation, adultery is not considered as an offence but
constitutes grounds for a divorce. There is no extensive broad opinion
in favor of the arrangement of adultery as an offence again.
Another significant
issue in the agenda of the public opinion is the “honor killings”.
Specifically, the cases where women are killed by their husbands,
brothers or other close relatives due to honor are called “honor
killings”. An article in Criminal Law enables significant reductions
in general sentences given for such killings and other crimes of
violence against individuals. Consideration of the impairment of
the concept of honor in such acts as a heavier provocation in addition
to the general mitigating circumstances enabled imposition of a
penalty lighter than that imposed against the offenses under normal
circumstances. Directorate General on the Status and the Problems
of Women made necessary attempts in the presence of Ministry of
Justice for the annulment of this article. Consequently, this article
has been annulled in the Criminal Law draft. Offense of removing
virginity with the promise of marriage defined in the Criminal Law
has been deleted and defined as an offense of torture while the
torture made by the parents or spouse was defined as a mitigating
circumstance.
VI.
Tax Law
No gender discrimination
is present in the taxation laws. An implementation resulting in
a discrimination against married women was annulled in 1998. “ Family
declaration” regulations was present in the Income Tax Law and this
declaration was issued by the husband on the basis of the concept
of family head. This provision was amended with a law enforced on
29.07.1998. Married women are entitled to issue individual declarations
and to pay individual income tax.
VII.
Occupational & Social Security Law
Women’s employment
in Turkey is not at the preferred level. 69,5% of men and 27,9%
of women are employed. Despite the fact that there exists no legal
obstacle against the employment of women, this level is low due
to various socio-cultural reasons.
Women Civil Servants are entitled for paid maternity leave for 3
weeks prior to and 6 weeks following the birth in addition to unpaid
leave for one year after the birth as per State Civil Servants Law.
Women employed as per Labor Law no. 1475 are entitled for paid maternity
leave for 6 weeks prior to and 6 weeks following the birth in addition
to unpaid leave for 6 months after the birth.
Attempts are
being continued to remove the differences in maternity leaves for
women employed as per both laws (Social Security Law applicable
for the employees in private sector and Retirement Fund Law applicable
for those employed in public sector). Moreover, in order to make
necessary amendments in legal regulations on the current social
security system to ensure active involvements of fathers in child
care by converting paid maternity leaves into parent leaves, Directorate
General on the Status and the Problems of Women requested amendment
of Labor Law and State Civil Servants Law under an identical law
(in compliance with international laws) and the attempts are still
under progress.
Pregnant women
and those who gave birth receive health aid under the scope of “maternity
insurance”. However, differences exist in beneficiary women employed
as per two different insurance laws in terms of benefiting from
these aids. Studies are being carried out to remove the said differences
and to raise the quality of the services delivered.
Vlll.
Optional Protocol to CEDAW
Optional Protocol
to “Convention on Elimination of All Forms of Discrimination Against
Women” (CEDAW) prepared by UN and presented to the approval of the
signatory states of CEDAW was ratified by our country and presented
to Turkish Grand National Assembly to be signed thereby. Protocol
ratified by Commission of Foreign Affairs on October 18, 2001 is
on the agenda of General Board of Protocol.
Signatory states
of the protocol shall recognize the competence of the Committee
on the Elimination of Discrimination against Women -- the body that
monitors States parties' compliance with the Convention -- to receive
and consider complaints from individuals or groups within its jurisdiction.
Committee on CEDAW shall ask the State claimed of breach as a consequence
of the inquiry to take necessary precautions and to refrain from
harming the rights of the complaining individual or groups.
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