The Istanbul Convention cannot be exited with a Presidential Decree.
Another State Council Prosecutor gave his opinion in the cases brought against the Presidential Decree involving the annulment of the Istanbul Convention. The prosecutor stated that the Istanbul Convention cannot be exited with a Presidential Decree.
CURRENT
10.03.2022 14:41
Another State Council prosecutor gave his opinion: The Istanbul Convention cannot be exited with a Presidential Decree.
The Prosecutor gave his opinion in the application made by IYI Party Chairperson Meral AKŞENER to the Council of State against the annulment of the Istanbul Convention by the Presidency’s decision. In the opinion, it was emphasized that the Istanbul Convention, which was put into effect by the decision of the Assembly, cannot be exited with a Presidential Decree.
The application made by IYI Party Chairperson Meral Akşener to the Council of State for a stay of execution was rejected, and the application was started to be examined on the merits.
The Prosecutor of the Council of State Nazlı Yanıkdemir gave her opinion on the application subject to the case on March 8, International Women’s Day.
The prosecutor pointed out that a contract accepted by the approval law of the Turkish Grand National Assembly can only be repealed by the same method.
In the opinion of the prosecutor, the Constitution states that “Sovereignty belongs to the Nation unconditionally. The Turkish Nation exercises its sovereignty through its authorized organs in accordance with the principles laid down by the Constitution. The exercise of sovereignty cannot be left to any person, group or class under any circumstances. No person or organ can exercise the power of a State that does not derive its source from the Constitution.”
Regarding the annulment decision, in which the Prosecutor of the Council of State drew attention to the excess of authority, he also referred to Article 90 of the Constitution, which was regulated with the words “The ratification of agreements to be made on behalf of the Republic of Turkey with foreign states and international organizations depends on the approval of the Turkish Grand National Assembly by a law”.
In his opinion, Prosecutor Yanıkdemir stated, “Considering the legal effects of international agreements duly put into effect within the scope of legislative activity, the amendment, termination or annulment of the provisions of these agreements, the duties and powers of the President of the Republic are defined in detail in Article 104 of the Constitution. According to the 17th paragraph, it cannot be regulated by a Presidential Decree.
Prosecutor Yanıkdemir said, “Since the contract that is the subject of the case is approved by the Grand National Assembly of Turkey with the Law No. 6251 of 24/11/2011,” said Prosecutor Yanikdemir, “Unless a law regarding its annulment is enacted, it cannot be terminated only by the decision of the President.”
Drawing attention to the situation that requires an application to the Constitutional Court, the Prosecutor said, “The phrase ‘stopping the implementation of their provisions and terminating them’ in the first paragraph of Article 3 of the Presidential Decree No. It is considered that it is necessary to apply to the Constitutional Court for annulment, as it is concluded that Articles 7 and 7 and paragraph 17 of Article 104 are inconsistent.
Prosecutor Yanıkdemir gave the following opinion at the end of his opinion;
For the reasons explained and in accordance with the first paragraph of Article 28 of the Law No. 2949 on the Establishment and Duties of the Constitutional Court, which allows the court dealing with a case to apply to the Constitutional Court with its reasoned decision, if it considers a provision of law to be applicable due to that case unconstitutional, The phrase “suspending the implementation of their provisions and terminating them” in the 1st paragraph of the 3rd article of the Presidential Decree No. 9, which is the basis of the Presidential Decree no. It is necessary to apply to the Constitutional Court due to the violation of the 17th paragraph of the article;
If this opinion is not deemed appropriate by the committee, since the dispute will be concluded in accordance with the provisions in force, regarding the annulment of the Council of Europe Convention on the Prevention and Combating of Violence Against Women and Domestic Violence, published in the Official Gazette dated 20/03/2021 and numbered 31429, for the Republic of Turkey, 19/ It is thought that it would be appropriate to annul the President’s Decision dated 03/2021 and numbered 3718.
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