Introduction to Law Dersi 3. Ünite Özet

Introduction

In this chapter the concept of human rights is going to be examined. The definition of human rights, international human rights standards, procedures and institutions for protection and promoting human rights are going to be explained. In this context, especially protection of human rights under the European Convention on Human Rights will be taken in hand with the European Court of Human Rights and its landmark cases as regards to applications from Turkish citizens.

Human Rights

Human rights put human dignity in the center of concern. The characteristics of human rights are as follows:

• Universal: human rights are applied equally and with no discrimination.
• Inalienable: no one can have his/her human rights’ taken away without any justification.
• Indivisible and interdependent: all human rights have equal importance.

Neither of them are overriding another by being more important than the other.

The existence of human rights is a result of a struggle against unrestricted absolute power of rulers. In that sense early examples of documents limiting absolute power in a constitutional status are

• Magna Carta, 1215
• Petition of Rights, 1628
• TheAmericanDeclarationofIndependence, 1776
• The French Declaration of Human and Citizen Rights, 1789.

International Human Rights Standards

The principle to respect human rights is established by the Charter of the United Nations. The General Assembly of the United Nations adopted the Universal Declaration of Human Rights on December 10th, 1948. It sets common standards of achievements for all individuals and nations. Under the Universal Declaration of Human Rights, among others, right to life, liberty, security, right to movement and residence, right to a nationality, right to marry and found a family, right to own property, freedom of thought, conscience and religion, freedom of opinion and expression, freedom of peaceful assembly and association, right to work, right to an effective remedy by the national competent tribunals for acts violating the fundamental rights, are granted.

The Universal Declaration of Human Rights carries provisions setting principles to which members of United Nations commit themselves. However, such provisions are not legally binding. To give provisions of the Universal Declaration of Human Rights legal force, they shall be articulated in conventions.

Here is some relevant conventions about human rights:

• The International Covenant on Civil and Political Rights (1966) for protection against abuses of power.
• The International Covenant on Economic, Social, and Cultural Rights (1966) to enable individuals to live a decent life and fulfill their essential needs.
• Convention on the Prevention and Punishment of the Crime of Genocide (1948)
• Convention relating to the Status of Refugees (1951)
• International Convention on the Elimination of all Forms of Racial Discrimination (1965)
• Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968)
• Convention on the Elimination of all forms of Discrimination against Women (1979)
• Convention on the Rights of Persons with Disabilities (2006)

Here is some regional conventions:

• The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
• The European Social Charter (1961)
• The American Convention on Human Rights (1969)
• The African Charter on Human and People’s Rights (1981)
• TheInter-American Convention on Prevent and Punish Torture (1985)
• The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987)

Monitoring bodies of human rights under the UN: In order to monitor the implementation of human rights universally and for universal human rights complaints the Human Rights CommitteeUnited Nations Human Rights Office of the High Commissioner and United Nations Economic and Social Council were established. The former works for monitoring civil and political rights under the International Covenant on Civil and Political Rights while the; latter stands for economic, social and cultural rights under the International Covenant on Economic, Social, and Cultural Rights. The High Commissioner for Human Rights provides assistance to Governments in the fields of legislative reforms, trainings on administration of justice, and so on by helping them to implement human rights standards on the ground. The way the High Commissioner for Human Rights works through comprises standard setting, monitoring and implementation on the ground. In order to protect and promote human rights the High Commissioner for Human Rights cooperate with governments, national human rights institutions, civil society, private sectors and others.

Protecting and promoting human rights under the Ueuropean Convention on human rights:

The European Convention on Human Rights is an international treaty that member States of the Council of Europe undertakes to secure fundamental civil and political rights to everyone within their jurisdiction.6 In particular, the rights and freedoms secured by the European Convention on Human Rights are, among others, the right to life, the right to a fair hearing, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, the protection of property. The rights enshrined in and protected by the European Convention on Human Rights have been extended by Protocols. A Protocol to the European Convention on Human Rights is statements adding rights to the original Convention and/or amending certain provisions of it. These protocols are binding on those States that have signed and ratified them.

European Court of Human Rights: the member states of the Council of Europe the European Court of Human Rights was established. While monitoring the European Court of Human Rights interprets the provisions of the European Convention on Human Rights by its case law which in turn results in keeping the European Convention on Human Rights a living instrument. The scope of the jurisdiction of the European Court of Human Rights covers violations of the European Convention on Human Rights brought as individual applications or inter-state applications.

Human Rights Under Turkish Legal System

Under Turkish Constitution (1982) human rights are articulated as “fundamental rights and freedoms”. It is stated in the preamble of the Constitution that every Turkish citizen has the right to the fundamental rights and freedoms laid down in the Constitution in accordance with “equality” and “social justice”, to lead an honorable life and to improve his/her material and spiritual well-being under the aegis of national culture, civilization, and the rule of law. Provisions governing human rights under Turkish Constitution give first a definition, than stipulate rules on restriction and prohibition of abuse of them.

The Turkish Constitution also sets minimum standards for protection of human rights under state of emergency.

According to article 90/5 of the Constitution, international agreements ratified by the Republic of Turkey are considered to be an integral part of Turkish Law.

With its wording of the article 90/5, international human rights agreements precede national laws. In other words, if there exists a conflict between an international agreement and national law, the former will prevail. Therefore, the article 90/5 of the Constitution gives priority to international human rights agreements over statutory norms. However, if there is a conflict between international human rights agreements and constitutional provisions Constitution will prevail.

Individual Application / Constitutional Complaint under Turkish Law: The individual application has been introduced into the Turkish Legal System by the constitutional amendment made on 12.09.2010 with the Law No 5982. By this amendment the individual application was enshrined in the article 148 of the Constitution.

Law No 6216 expands the sphere of protected fundamental rights and freedoms as the wording of it takes the scope of the individual application further than the Constitution by referring to the fundamental rights and freedoms covered in Protocols of the European Convention on Human Rights. Such coverage also includes the case law of the European Court of Human Rights. It has to be noted that individual application is not about Constitution or constitutional review; it regards only the violation of fundamental rights and freedoms protected by the Constitution, and the European Convention on Human Rights and its Protocols.

Selected Cases of The European Court of Human Rights on Applications From Turkey

We will examine only one case here for example:

Case of Ünal Tekeli V. Turkey (Application no. 29865/96) Facts: Applicant Ayten Ünal was a Turkish national and lawyer. She started her professional career and made business network with her maiden name. She couldn’t use her maiden name at official documents after her marriage. The case she filed at national courts rejected on the basis of Article 153 of the Civil Code, which prescribed that married women must use her husband’s surname after getting married. Referred article amended afterwards and married women acquired the right to use her maiden name beside her husband’s surname; however, the applicant preferred to use her surname merely. Related Rights/Alleged Breach of Articles: Alleged breach of article 14 of the European Convention on Human Rights taken in conjunction with article 8. “43. The applicant complained that the authorities had refused to allow her to bear only her own surname after her marriage whereas Turkish law allowed married men to bear their own surname. She submitted that this resulted in discrimination on grounds of sex and was incompatible with Article 8 taken together with Article 14 of the Convention. 44. The Government acknowledged that it amounted to a difference in treatment on grounds of sex but argued that this was based on objective and reasonable grounds which prevented it from being in any way discriminatory.” Article 8, Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with thelaw and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14, Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Court’s Judgment: Firstly Court founds “difference in treatment” against woman with respect to using her own surname after marriage. Then examination carried out over whether this distinction is justifiable or not. Court acknowledged the social reasons behind the legislation but did not deem them compatible with values shared by member states of European Council. Court emphasized that the new Turkish Civil Code abolished the status of the men as head of the family and introduced equality for both parties of marriage to representing family. As Turkish law itself provides the same status for married couples to represent family, it should be possible to choose woman’s surname as well as man’s. Court did not found justification for different treatment and ascertained that: “The Government have not shown in the present case that concrete or substantial hardship for married partners and/or third parties or detriment to the public interest would be likely to flow from the lack of reflection of family unity through a joint family name.”. The Court found violation of Article 14 taken in conjunction with Article 8 and did not determine whether there has also been a breach of Article 8 taken alone.