Istanbul Convention response from Presidency!

2021-06-28 14:52:39


	 

	NEWS CENTER - The Presidential Directorate of Administrative Affairs, General Directorate of Law and Legislation responded to the lawsuit filed by TIP for the annulment of the decision to withdraw from the Istanbul Convention. In the response, it was argued that all authority on the President and this is legal.

	 

	The Workers' Party of Turkey (TİP) filed a lawsuit against Turkey's withdrawal from the Istanbul Convention by a midnight decision of President Tayyip Erdogan. TiP requested an appeal to the Constitutional Court for the annulment of the Presidential Decision No. 3718, the suspension of its execution, and the annulment of the decision on the grounds that Article 3 of the Presidential Decree No. 9 is unconstitutional.

	 

	The Presidential Directorate of Administrative Affairs, General Directorate of Law and Legislation responded to the lawsuit filed by TİP for a stay of execution. In the petition prepared with the signature of Hakkı Susmaz, General Manager of Law and Legislation; It was stated that Turkey's decision to withdraw from the Istanbul Convention is in the ‘interest of the state’, and that the judicial remedy is closed. On the other hand, while it was stated in the petition that the subject of the case should be handled within the framework of foreign relations, it was noted that the termination of the convention was under the authority of the President.

	 

	Judicial remedy closed answer

	 

	The petition continued as follows:

	 

	‘’There is no doubt that due to the nature of the regulation or the actions of the president as the head of the state, which concern the state's best interests, the judicial remedy is closed.

	 

	The President's Decision, which is the subject of the case, is a process that is categorically established within the framework of foreign relations and is subject to the authority of the President, and it cannot be considered within the scope of judicial control. 

	 

	For the stated reasons, it is not legally possible to apply for annulment the decision dated 19.03.2021 and Law No. 3718 regarding the termination of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence for the Republic of Turkey. Therefore, the present case should be rejected in this respect.’’

	 

	Requested to reject case

	 

	In the petition, it was also argued that the lawsuit filed by TİP regarding the Istanbul Convention had nothing to do with the legal entity of the party.

	 

	In the petition, the following statements were used, citing Article 3 of the Law on Political Parties No. 2820:

	 

	‘’The Presidential Decision that is the subject of the case concerns the termination of the Council of Europe Convention on the Prevention and Combating of Violence Against Women and Domestic Violence in terms of the Republic of Turkey, the decision does not have a legitimate and current interest relationship concerning the legal entity of the party, and it is not possible for it to have consequences on the legal personality of the party.

	 

	Moreover, the relevant convention is not directly enforceable in domestic law in terms of its content, and the principles included in the convention have the qualification of being implemented through the regulations made in the domestic law of the party countries. In this case, it cannot be said that the President’s Decision, which is the subject of the case, has an impact on the legal personality of the claimant political party. For the stated reasons, the case must first be rejected in terms of competence.’’

	 

	President has sole power

	 

	The petition also emphasized that with the Presidential Government System, the President was given the authority to make regulations under the name of “Presidential Decree”, and it was stated that the termination of international conventions was regulated by the Presidential Decree. In the petition, which emphasized that these decrees gave the President the “authority to make arrangements at first hand” on certain issues, the following expressions were used:

	 

	‘’As stated in the justifications of the Constitutional Court's decisions, one of the most important features of the Presidential Government System is the authorization of the President to make regulations under the name of 'Presidential Decree'. The most distinctive feature of these decrees is that the President is given the authority to make regulations on certain issues at first hand.

	 

	Unlike other regulatory acts of the executive branch, the President can make regulations through Presidential Decrees without relying on any law or without the approval of the legislature. Accordingly, in the first sentence of the seventeenth paragraph of Article 104 of the Constitution, it is stipulated that the President can issue a Presidential Decree on matters related to executive power.

	With the relevant Constitutional provision, the President has been given general authority to issue a Presidential Decree, if it is related to the executive power.

	 

	Parliament has no power

	 

	In the petition of the presidency, it was stated that there was no need for an action by the Grand National Assembly of Turkey (TBMM) in the process of annulment of international conventions, and that the authority to terminate the convention rests with the President. 

	 

	The petition included the following statements: ‘’Contrary to what is claimed, the view that the TBMM is authorized to terminate an international convention, in accordance with the principle of parallelism in our legal system, authority and procedure, has no legal validity.’’

	 

	‘’In Turkish Law, the President has the authority to terminate/annul an international convention for the Republic of Turkey, even if it was previously approved by the Grand National Assembly of Turkey. In other words, to terminate a convention approved by the TBMM by law, there is no need to repeal the law of approval or to issue a law or decision by the TBMM to terminate it. In fact, a process in this direction has not been envisaged in our Constitution, Parliamentary Rules of Procedure, or in laws. Contrary to what is claimed, the view that the TBMM is authorized to terminate an international treaty, in accordance with the principle of parallelism in our legal system, authority and procedure, has no legal validity.’’

	 

	In the reply petition submitted to the 10th Chamber of the Council of State, it was suggested that the lawsuit filed by TİP about the termination of the Istanbul Convention for a stay of execution should be rejected.

	 

	The case was found unfair and without legal basis

	 

	In the petition, while demanding that TİP pay for the trial expenses, the following statements were included: ‘’For the reasons explained; Since the Presidential Decision, which is the subject of the case, is completely in line with the law and the claims of the plaintiff to the contrary are found to be baseless, it should be decided to reject the lawsuit filed unfair and baseless, and the request for stay of execution whose legal conditions are not met.

	For the reasons explained above and to be considered ex officio, I request the rejection of the lawsuit, which is unfair and devoid of the legal basis, and the rejection of the request for a stay of execution, whose legal conditions are not met.  I submit and demand by proxy that the litigation expenses be charged to the other party and that the attorney's fee is paid in favor of our administration in accordance with Decree No. 659.’’