The 9th Judicial Package, which the government announced it has been working on for a long time, has been submitted to the Parliament.1&nbsp;The proposal, titled "Proposal for the Amendment of Certain Laws," consists of 39 articles, including the practical and executive articles, and envisages amendments to 19 laws.Rather than providing solutions to the judiciary's deep-rooted problems, this package mainly introduces new regulations to replace some of the rules annulled by the Constitutional Court. It is noted that the "influence agency" regulation, which was included in the text leaked to the public and caused reactions, is not included in this proposal. We hope this regulation, which would completely shelve the freedoms of expression and association, will not be included in this proposal again during the Commission or General Assembly negotiations.On the other hand, it is seen that calls for a general amnesty or an execution arrangement and an arrangement to remedy the injustices suffered by those under Statutory Decree Laws were not heeded, and no such arrangement was included in the proposal. However, there is an urgent need for regulation in this regard. The ECtHR has notified the government of three thousand applications in batches of 200 as a continuation of the Yüksel Yalçınkaya judgment. In addition to these, other groups of applications filed by applicants who were tried and sentenced for alleged FETÖ membership have also been notified to the government, and these notifications also include questions regarding Article 7 of the Convention, which regulates the principle of no crime and punishment without law. The likelihood of a violation decision in these applications is very high. In that case, a systemic solution would be inevitable for all FETÖ trials. Therefore, it is imperative for the government to find a solution without waiting for thousands of violation decisions.A significant part of the regulations in the proposal is related to the issues canceled by the Constitutional Court and includes new regulations by the grounds for cancellation. Since the offense of defamation has become a source of income for many people, hundreds of thousands of defamation complaints are made every year due to social media posts, and prosecutors and courts deal with these complaints. The proposal includes some regulations in this regard. A maximum period of two years is envisaged for filing a complaint. In addition, the practice of reconciliation for the offense of defamation is abolished, and prepayment is introduced. However, it is clear that these regulations will not solve the problem. For a permanent solution, defamation should be completely decriminalized, and those who claim to have been defamed should file a lawsuit for compensation in civil courts.Article 187 of the Turkish Civil Code No. 4721, which regulates the surname of married women and was annulled by the Constitutional Court, is rearranged with Article 15 of the proposal. However, as we have covered in previous issues of this bulletin, the proposed regulation is the same provision that was annulled by the Constitutional Court. In other words, the government refuses to comply with the Constitutional Court's decision. This, of course, also means that the ECtHR judgment will not be complied with. As mentioned before, both the ECtHR and the Constitutional Court have ruled that denying married women the right to use the surname they had before marriage alone constitutes gender discrimination. Despite this, the government wants to re-enact the same provision that was annulled by the Constitutional Court.The preamble of the article states that “Article 41 of the Constitution recognizes that the family is the foundation of Turkish society. Considering the importance of the family, the use of separate surnames by the mother and father may have negative effects on the child, and which surname the child will use will become a separate issue of discussion. This situation may harm the integrity of the family, which is the foundation of Turkish society. For this reason, the provision of the law that was annulled by the Constitutional Court has been reorganized, stating that the married woman will take her husband's surname, but she can also use her previous surname in front of her husband's surname if she wishes...”. If the proposal is enacted in its current form, it is clear that this provision will be in violation of the Constitution and international human rights conventions to which Turkey is a party. This text will be annulled again by the Constitutional Court on the grounds that it violates Article 153 of the Constitution (the provision on the binding nature of the Constitutional Court's decisions), and this provision will not be enforceable as per Article 90 of the Constitution. The courts will decide that women should use their premarital surnames based on international conventions, as they have been doing since 2014.

The Freedom Observer

Rather than providing solutions to the judiciary's deep-rooted problems, this package mainly introduces new regulations to replace some of the rules annulled by the Constitutional Court.

propo ile ilgili hikayeler