Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law

On 19 December 2013 the Turkish Constitutional Court delivered what some local journalists are calling a ‘revolutionary’ judgment. The revolutionary judgment in question recognised that women indeed have the right to retain, if they so wish, their last name when they get married. Of course, in the grand scheme of women’s rights, this is far from ‘revolutionary’. It is also not trivial.  A woman’s right to choose her name is the tip of the iceberg in her struggle to stand as an equal in family relationships. What it does is challenge the deep and entrenched patriarchal stereotype of the family as a unit joined under a single name – the man’s. It also emphasises the importance of name for women’s self-development – whether married or single.

The substantive advancement of women’s rights by this decision aside, the judgment also tells us a tale of the reception of international law by domestic courts. In particular, it offers us clues for comparatively studying how high courts negotiate the tension between progressive international legal commitments and, frankly, backward domestic laws tacitly backed up by the domestic legislature and executive.  This is the third time (yes, indeed) that Turkey’s Constitutional Court dealt with this case – each time with identical facts (a woman asking to keep her name upon marriage) – and the second time it has done so since the European Court of Human Rights delivered a violation judgment against Turkey on the very same issue.  In the first two instances, in 1998 and 2011, the Turkish Constitutional Court decided that the Civil Code which requires a woman to change her name upon marriage was not unconstitutional. In the third case, it did find it unconstitutional.

The Case (or the cases…) 

The subject matter of the 19 December 2013 judgment is identical to other similar cases that have been brought before domestic first instance courts and the Court of Cassation in Turkey. Some of these cases have already made their way to the European Court of Human Rights – including my own. Article 187 of the Turkish Civil Code requires women, upon marriage, to change their names either by taking the husband’s name or creating a hyphenated hybrid. The man’s name remain unchanged in both of these scenarios. The applicant (always a woman) does not wish to change (or hyphenate) her last name when she gets married. She relies on Article 16(g) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Articles 8 (right to privacy) and 14 (non-discrimination clause) of the European Convention of Human Rights (ECHR). Article 16(g) of CEDAW has clear and open provisions on equality between men and women in marriage.  Whilst ECHR Article 8 does not have specific provisions, the seminal Turkish case on a woman’s name identity – Tekeli v Turkey – found the Turkish Civil Code in violation of Articles 8 in conjunction with 14 of the Convention. This was in 2004 – ten years ago.  In this case the European Court of Human Rights stated that a woman’s name comes within the scope of her private life and when it comes to names there is no reasonable objective for treating married men and women differently.

The first instance courts, the Court of Cassation, the Turkish Constitutional Court and the Turkish legislature have been unimpressed with these international law arguments for the past decade or so.  Low or high, Turkish courts have argued that the wording of Article 187 of the Turkish Civil Code is clear and that judges must apply the this article as long as it remains unchanged by Parliament.  Parliament has failed to amend this article in the past nine years – despite the considerably small and non-technical nature of such an amendment. Apathy on the issue by the ruling government holding the majority of seats in Parliament, together with lack of well-organised and mobilised domestic and international pressure best accounts for this legislative inactivity.

A feeling of déjà-vu…

The first time a claim to a name came before the Turkish Constitutional Court was in 1999. At that time no such cases existed before the European Court of Human Rights. Turkey had a reservation to Article 16(g) of CEDAW. The case was referred to the Constitutional Court by a first instance court. The Constitutional Court reviewed the case under its ‘normative’ guardianship of the Constitution. Instead of reaching out to international law, the Turkish Constitutional Court chose to rationalise the legislative intent and argued that women needed to change their name in order to maintain the unity of the family.

Twelve years later, in 2011, the circumstances of the Court were different. With a 2004 amendment to its Article 90, the Constitution unequivocally required the application of human rights treaties when they conflicted with domestic law. The 2004 amendment package also introduced a gender equality provision to the Constitution – making it, on paper at least, more gender friendly. Turkey withdrew its reservation to Article 16(g) of CEDAW.  What is more, in 2004, the applicant who was the subject of the referral case of 1999 made her way to Strasbourg and came back home with violation judgments of Articles 8 and 14. Stories of women litigating for their names had become common place, as had the stories of rejection in Turkish courts. The number of women taking their cases to Strasbourg also grew. Despite this more internationalised and domestically conducive environment, the Turkish Constitutional Court continued with (in fact, clung tighter to) its line on the sacred nature of family under the Turkish Constitution and the necessity of women having to give up their names to maintain the family unit.

In this new judgment of 2013 and only two years after its last judgment, the Court has altered its position. It now says it is unconstitutional to force a woman to change her name. The Court refers to the European Convention on Human Rights, the case law of the European Court of Human Rights interpreting the Convention (in particular, Burghartz v. Switzerland, Stjerna v. Finland, Niemetz v. Germany, Fadeyava v. Russia, Ünal Tekeli v. Turkey, Leventoğlu Abdülkadiroğlu v. Turkey,  Tuncer Güneş v. Turkey, Tanbay Tüten v. Turkey, the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination against Women. Finally, it, for the first time, develops the doctrine of the ‘direct effect’ of international human rights law interpreting the Turkish Constitution to the extent that when domestic law conflicts with international human rights law, which includes case-law of the European Court of Human Rights, the latter must take precedence. Devoid of any complex twisting of facts and any major changes to the Turkish Constitution and innovations in Strasbourg case-law, what has happened for such a major u-turn? Why did Turkish women get lucky the third time?

Reputational Cost Benefit Analysis

As much as I would have liked to explain away this case as one of the Turkish Constitutional Court turning into a beacon of women’s rights, the evidence calls for a rather normatively dull analysis. The shift in the reasoning of the Court primarily reflects the shift in the cost-benefit analysis frame of the Turkish Constitutional Court regarding its domestic and international reputation. Disregarding clearly worded long-standing domestic law, which the Court itself backed up on two separate occasions, is no simple matter. Furthermore, the Turkish Constitutional Court is better known for not changing its mind despite European Court of Human Rights judgments, as indicated by the long list of bans it imposed on political parties (See, representatively, judgments on the United Communist Party, Socialist Party and Welfare Party).  This is coupled with the lack of any interest on the part of legislature in changing the law on married women’s names, despite its international obligations to do so under Article 46 of the European Convention on Human Rights.

Two factors, one international and one domestic, enter the scene after the 2011 judgment leading to this shift in the cost-benefit analysis of the Turkish Constitutional Court.

First, the Constitutional Court has been put in the European spotlight by its newly acquired powers to adjudicate individual applications. This came into force on 24 September 2012 transforming the Court from an abstract judicial review institution to a rights adjudicator. The right to individual application was primarily introduced by the government as a formula to decrease the number of applications going to Strasbourg. The design of the individual application law also reflected this. The legislation allows the Court to adjudicate constitutional rights claims to the extent that those rights coincide with the provisions of the European Convention on Human Rights. The law, therefore, gives adjudicatory powers to the Turkish Constitutional Court for a limited number of rights under the Turkish Constitution. In so doing, the law on individual petition implicitly, necessitates the Turkish Constitutional Court to closely follow European Court of Human Rights case-law. Attesting to this in the run up to the right to individual petition coming into force, the Constitutional Court carried out countless seminars and roundtable discussions with judges, the registry of the European Court of Human Rights and human rights law experts on the application and interpretation of Strasbourg case-law. The law on the right to individual petition, therefore, has affected the Court’s own self-perception. More importantly it increased the cost of ignoring or going against Strasbourg case law.

Second, the past decade of repetitive litigation by Turkish women before the European Court of Human Rights has produced ‘clone’ violation cases. That the same facts appear in each and every case means that the Strasbourg Court confirmed on four separate occasions there is no interpretive wiggle room with women’s last names. First instance Turkish courts and the Court of Cassation have been unaffected by this jurisprudential clarity. They have chosen to adopt a strict dualist view on the role of Strasbourg case-law in the Turkish legal system despite the Article 90 of the Constitution. This, however, is not a viable option for a constitutional court just mandated with litigating Convention rights and decreasing the number of Turkish cases going to Strasbourg.

The combination of the need to cultivate a Strasbourg-compliant reputation and repetitive cases allowing for no wiggle room for interpretation increased the cost of ignoring international law for the Turkish Constitutional Court in such a short span of time. Women rejected in Ankara would doubtlessly win in Strasbourg. By following its own case law  and defending the legislative apathy to women, therefore, risked two things – being seen as an ineffective remedy for what is a very straightforward ECtHR case and thus failing to decrease the number of applicants to Strasbourg. If there was a battle to be fought on rights interpretation with Strasbourg, a woman’s right to her surname was not the one to fight. It is this combination that best explains the Turkish Constitutional Court’s volte face.

The fact that no compensation was awarded to the litigating woman who has been struggling to keep her name for some seven years (the ECtHR would have done so) and that the individual case was sent to the first instance court for retrial further supports the view that the Constitutional Court was not overly concerned with gender sensitivities. It just so happened that the cost of defending the ‘sacred family’ was too high for a recently internationally exposed Court handling too straight forward an international law principle. Indeed, perhaps we did get third time lucky.