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Ambivalence of the Relationships Between Dignity and Freedoms in Turkish Law

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The Reality of Human Dignity in Law and Bioethics

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 71))

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Abstract

The notion of ‘human dignity’ which is stated in several legal sources, starting with the Turkish Constitution, is not defined in any text. However, Turkish legislation and case law frequently refer to human dignity. This concept, which should normally be used to protect personal rights and fundamental freedoms, has largely been politicized for the last decade. It became an interpretive tool used to restrict the right of the public to information, by allowing politicians to discourage criticism which would normally be considered as acceptable. Nevertheless, the concept of human dignity has a crucial role to play in the field of bioethics: it is used to restrict one’s right to self-determination, especially in denying individuals the right to live or to die as they wish. As a result, it appears that human dignity is not adequately protected by Turkish law

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Notes

  1. 1.

    The numerous judgments against Turkey by the European Court of Human Rights for human rights violations are a clear affirmation of this. A few examples: ECHR, 27.09.2010, Case of Gülizar Tuncer v. Turkey, petition no. 23708/05; ECHR, 12.10.2010, Case of Umar Karatepe v. Turkey, petition no. 20502/05.

  2. 2.

    Previously, human dignity was defined as a person’s worth within society. Velidedeoğlu, H.V. 1963. Türk Medeni Hukuku, Şahsın Hukuku. İstanbul: Nurgök Matbaasi, 120; Ataay, A. 1978. Şahsın Hukuku. İstanbul: İstanbul Üniversitesi Hukuk Fakültesi, 137. However, if we follow this line of reasoning, we will conclude that the violations caused by society itself will not be considered contrary to human dignity. Thus, it will not be possible to recognise the violation of human dignity constituted by torture and degrading treatment. Recently, we have begun to distinguish between “internal” dignity and “external” dignity, so the notion of dignity relates to both the person and society. Oğuzman, M. K., Seliçi, Ö. and Oktay-Özdemir, S. 2014. Kişiler Hukuku, Gerçek ve Tüzel Kişiler. İstanbul: Filiz, 152; Helvaci, S. 2010. Gerçek Kişiler. İstanbul: Beta, 121; Dural, M. and Öğüz, T. 2013. Kişiler Hukuku. İstanbul: Filiz, 127.

  3. 3.

    See I. 3. The civil courts define human dignity as all of the values one has as a human being that are respected by society. Thus, a violation of human dignity is any violation that causes the feeling of a lack of these values for the person concerned and for society. Court of Cass., plenary civ. ch., 28.3.2001, 2-176/289 (www.kazanci.com).

  4. 4.

    Article 23 CC: No individual may, even partially, waive the enjoyment and exercise of his civil rights; and no individual may give up his freedom or refrain from using it in a way that is against the laws and morals.

  5. 5.

    For more details, see Oktay-Özdemir, S. 2010. Tıbbi Müdahaleye ve Tıbbi Müdahalenin Durdurulmasına Rızanın Kimler Tarafından Verileceği. In Prof. Dr. Rona Serozan’a Armağan, t. II, 1315 and s. İstanbul: Levha.

  6. 6.

    See I. 3. 2. Human dignity according to case law.

  7. 7.

    The Preamble to the Constitution of 18 October 1982, see JO, no. 17863, 09.11.1982.

  8. 8.

    Article 2 of the Constitution.

  9. 9.

    Article 17 of the Constitution.

  10. 10.

    Article 32 of the Constitution.

  11. 11.

    The courts sometimes refer to the rulings of the ECHR in their judgments. However, public opinion feels that these decisions are not adequately complied with.

  12. 12.

    Article 94 CC: Torture is also prohibited by Article 17, para. 3 of the Constitution. However, the application of these instruments by the Court of Cassation reflects the ambivalence of this protection: “The prohibition of torture is a crime that protects a number of interests. The value protected is of a mixed nature. This offence protects human dignity, the inviolability of the body and the maintenance of public order.” 8th ch. CC., 13.12.2012, 29994/38227 (www.kazanci.com).

  13. 13.

    Cruel treatments mean any act affecting the body or the mind; inhumane treatments are acts that cause serious harm to the human personality and feeling; degrading treatments involve behaviour that attacks a person’s honour, reputation or dignity. Court of Cass., plenary civ. ch., 15.10.2002, 8-191/362 (www.kazanci.com).

  14. 14.

    The other provisions of the Criminal Code that refer to human dignity are: conduct of a State official which threatens human dignity, causing a person physical or mental suffering, influencing the ability to perceive his or her will by humiliating that person (Article 94); submitting an employee to working or living conditions (Article 117) incompatible with human dignity; degrading behaviour towards a child (Article 232); unlawful trafficking in migrants in a manner which violates human dignity (Article 79); the use of painful or degrading methods during experiments on humans (Article 90). The courts emphasise the fact that torture is contrary to human dignity. In spite of that, the media comments that the State, in order to protect the police, may advocate on their behalf. It is possible that the State has used vague and convoluted arguments to deem victims guilty when subjected to behaviour that could be seen as torture.

  15. 15.

    Article 23 CC.

  16. 16.

    Through this provision, human dignity is used to protect the person against himself with regard to the excessive waiving of the exercising and enjoyment of rights and freedoms. Thus, independently of the fundamental rights, a contract that creates an excessive dependence, for example because it remains valid for a very long time, will be deemed to be contrary to the right to human dignity and on that account will be declared null and void. However, a new trend in Turkish law believes that nullifying contracts that create an excessive dependence would be the most appropriate sanction. Karabağ-Bulut, N. 2014. Türk Medeni Kanununun 23. Maddesinin Sözleşme Özgürlüğüne Getirdiği Sınırlamalar. İstanbul: Lehva, 353 and s.

  17. 17.

    Oğuzman, M. K., Seliçi, Ö. and Oktay-Özdemir, S. 2014. Kişiler Hukuku, Gerçek ve Tüzel Kişiler, op. cit., 142.

  18. 18.

    Ibid., 152.

  19. 19.

    Article 117 CrC.

  20. 20.

    Article 1 CC.

  21. 21.

    Article 4 CC.

  22. 22.

    See above, note 13.

  23. 23.

    Article 289 CCP.

  24. 24.

    “Evidence must be gathered with respect for human dignity and the limits set by the law. Evidence obtained in a manner contrary to human dignity may not be used”. Court of Cass., plenary civ. ch., 15.3.2005, 10-15/29 (www.kazanci.com).

  25. 25.

    Court of Cass., plenary civ. ch., 25.9.2002, 615/648; 2nd civ. ch., 10.10.2008, 17220/13614. These decisions have been roundly criticized by legal doctrine: Pekcanitez, H., Atalay, O. and Özekes, M. 2013. Medeni Usul Hukuku. Ankara: Yetkin, 694 and s.

  26. 26.

    The employer’s obligation to protect employees includes the protection of values, such as the physical and mental integrity of the employees, their honour and their privacy. Human dignity is not only violated by psychological violations, but also by physical violations, including those perpetrated by third parties. Court of Cass., 9th civ. ch., 13.2.2012, 42452/3132 (www.kazanci.com).

  27. 27.

    Court of Cass., plenary civ. ch., 6.2.2013, 9-847/200 (www.kazanci.com).

  28. 28.

    Court of Cass., 4th civ. ch., 10.4.2008, 9966/5096 (www.kazanci.com).

  29. 29.

    Court of Cass., 4th civ. ch., 30.1.2012, 12084/1064 (www.kazanci.com).

  30. 30.

    Court of Cass., plenary civ. ch., 24.3.2010, 4-129/173 (www.kazanci.com). However, violations targeting ethnic and religious minorities, as opposed to the majority, have more serious consequences. See Oğuzman, M. K. and Öz, M. T. 2014. Borçlar Hukuku, Genel Hükümler, t. II. İstanbul: Vedat, 258, ref. 27. It is possible to try to circumvent this dangerous interpretation by referring the investigation of crimes of defamation of the President of the Republic (article 299 CrC) and of the Turkish nation, of the Republic of Turkey, of state institutions and bodies (article 301 CrC) to the Ministry of Justice.

  31. 31.

    Court of Cass., plenary civ. ch., 24.3.2010, 4-29/173; 4th ch. civ., 5.4.2011, 4636/3669 (www.kazanci.com). For a critique of these decisions see Oğuzman, M. K. and Öz, M. T. 2014. Borçlar Hukuku, Genel Hükümler, op. cit., 259 and s.

  32. 32.

    Court of Cass., plenary civ. ch., 12.5.2004, 4-253/270; Court of Cass., 4th civ. ch., 28.4.1987, 2077/3267 (YKD 1987/7, 1160); Court of Cass., 4th civ. ch., 27.6.2006, 6753/7795 (www.kazanci.com).

  33. 33.

    Court of Cass., plenary civ. ch., 30.5.2005, 4-199/212; Court of Cass., 4th civ. ch., 22.2.2000, 1078/1598 (www.kazanci.com).

  34. 34.

    Court of Cass., plenary civ. ch., 18.5.2011, 14-249/334; Court of Cass., plenary civ. ch., 23.6.2008, 4-295/270; Court of Cass., 4th civ. ch., 27.3.2014, 4055/5259; Court of Cass., 4th civ. ch., 21.4.2011, 4439/4467; Court of Cass., 4th civ. ch., 14.6.2012, 6050/10402; Court of Cass., 4th civ. ch., 7.2.2012, 13679/1566 (www.kazanci.com).

  35. 35.

    Oğuzman, M. K., Seliçi, Ö. and Oktay-Özdemir, S. 2014. Kişiler Hukuku, Gerçek ve Tüzel Kişiler, op. cit., 188; Honsell, H., Vogt, P. N. and Wiegand, W. 2014. Basler Kommentar, Zivilgesetzbuch, art. 28, no. 51. Basel-Genf-München: Helbing Lichtenhahn.

  36. 36.

    For example: http://www.radikal.com.tr/turkiye/penguen_cizerlerine_11_ay_hapis_cezasi-1320909.

  37. 37.

    However, and according to what we have been able to learn from the media, for the last year and in accordance with the former case law, the courts have been ruling that criticism of members of the government by opponents does not constitute a violation of human dignity and remains within the framework of providing society with critical reviews and information. These decisions have not yet been published. See http://arsiv.taraf.com.tr/haber-capsiz-hakaret-degil-siyasi-elestiri-169312/; http://www.taraf.com.tr/politika/gokcek-sokta-bir-tokat-ta-yargidan. We apologize for the lack of access to this site after a recent court decision.

  38. 38.

    Council of State, 9.3.2010, 3605/2129 (www.kazanci.com).

  39. 39.

    Ratified by Turkey in 2003.

  40. 40.

    Article 1 of the Reg. on patients’ rights. According to Article 39, hygiene conditions worthy of human beings must be maintained in medical establishments, as well as the elimination of noise and other disturbing factors. The patient has the right to demand these conditions. There is therefore an obligation to maintain a healthy environment that is in keeping with human dignity.

  41. 41.

    The 23rd Civil Court of Ankara dismissed the action brought by the Ministry of Health requesting the termination of the Ankara Medical Council that helped protesters injured during the demonstrations. It stated that the voluntary intervention of the doctors prevented a more serious situation from developing and that the doctors had an obligation to protect human lives on account of their profession and on humanitarian grounds. However, the outcome of the individual actions lodged against the doctors is yet to be determined.

  42. 42.

    The provision added to the Law on health services stipulates a prison sentence and a fine for persons providing a health-related service without authorisation, apart from exceptional cases and until a long-term emergency medical service presence has been established; and for health establishments that provide a service via their units that requires special authorisation which has not been received from the Ministry. Article 46 of Law no. 6514. JO, no. 28886, 18.1.2014.

  43. 43.

    Articles 23 and 24 CC are the main rules concerning protection in all areas. According to these, no one may excessively waive their exercising and enjoyment of the rights and freedoms and legal action can be taken against any individual unlawfully harming their personality.

  44. 44.

    Article 25 of the Reg. on patients’ rights.

  45. 45.

    Article 13 of the Reg. on patients’ rights.

  46. 46.

    Dural, M. and Öğüz, T. 2013. Kişiler Hukuku, op. cit., referred to above, 114. For a contrary opinion, Oğuzman, M. K., Seliçi, Ö. and Oktay-Özdemir, S. 2014. Kişiler Hukuku, Gerçek ve Tüzel Kişiler, op. cit., referred to above, 169. The writers agree that an intervention contrary to the patient’s wishes is possible, if this is in the overwhelming private interest.

  47. 47.

    Oktay-Özdemir, S. 2010. Tıbbi Müdahaleye ve Tıbbi Müdahalenin Durdurulmasına Rızanın Kimler Tarafından Verileceği, op. cit., 1322 and s.

  48. 48.

    Article 40 CC. Turkey was recently condemned by the ECHR for refusing to authorise a transsexual to change sex for several years. The grounds for the initial dismissal were that the person in question was not definitively incapable of reproduction. The Court found that the dismissal was not based on a pertinent ground and considered that there was a violation of the right to respect for private and family life. Case of Y.Y. v. Turkey, petition no. 14793/08 (not definitive). It must be noted that the position of the Turkish court is curious, as the condition of “definitively incapable of reproduction” was previously interpreted as a refusal of reproduction for psychological reasons. Sağlam, İ. 2004. Türk Medeni Kanunu Madde 40 Üzerine Bir Değerlendirme. Erzincan Üniversitesi Hukuk Fakültesi Dergisi, VIII(3–4): 467–469. Again, we can see the rights being called into question. When there were no appropriate provisions in the Civil Code, the 2nd civ. ch. of the Court of Cass. refused an application to amend the civil status register following a gender reassignment operation carried out abroad. One of the Court’s arguments was that the man had to be protected against himself. 27.3.1986, 651/3256 (www.kazanci.com). However, according to the dissenting opinion, human dignity made the protection of this man against himself impractical, as the protection had to be restricted to attacks from third parties. Legal doctrine says that to require a person who has undergone gender reassignment surgery, even illegally, to live with an identity that he or she no longer physically resembles is contrary to human dignity. Kocayusufpaşaoğlu, N. 1986. Türk Hukukunda Transseksüeller Nüfus Kütüğündeki Cinsiyet Kaydının Düzeltilmesi İçin Dava Açabilir Mi?. İstanbul: Filiz, 11.

  49. 49.

    2nd civ. ch., 21.12.2009, 9678/22090 (www.kazanci.com). However, an application to amend the civil status of a person operated on abroad without complying with the legislation of that country will be rejected by the Turkish courts. It is unacceptable that a purely declaratory character judgment can create so much inequality between the ways of life of different people, without taking account of their physical and psychological situation.

  50. 50.

    The hospitals form committees to decide whether the candidate meets all the conditions required for a sex change. Most applications are refused.

  51. 51.

    Although medical interventions take place subject to a written agreement and the medical staff must act in accordance with his notional wishes, the individual concerned will be protected independently of his own decisions on account of the prohibition on waiving one’s rights.

  52. 52.

    Karabacak-Furunci, S. 2012. Türk Hukuk Düzeninde Biyoetik Kurullar. İstanbul: Unpublished Master’s thesis, 63 and s. There are ten hospital ethics committees in Turkey. Some of these committees are in universities and were created by way of a regulation.

  53. 53.

    However, the decisions of some ethics committees based in universities are published. For example, the research ethics committee of the Faculty of Medicine at the University of Ankara publishes a résumé of its decisions: http://etikkurul.medicine.ankara.edu.tr/?page_id=48 (31.3.2015).

  54. 54.

    The composite tissue transplant council must approve the decision to carry out a composite tissue transplant. The transplant cannot take place without this approval, which is based on medical data and ethics. Article 8 of the Directive on composite tissue transplant centres, Ministry of Health, 29.3.2011, no. 13984.

  55. 55.

    Fikret Bila, “Doç. Dr. Serdar Nasır Milliyet’e konuştu: İçim kan ağlıyor”, March 29, 2012,

    http://www.milliyet.com.tr/icim-kan-agliyor/siyaset/siyasetyazardetay/29.03.2012/1521174/default.htm.

  56. 56.

    http://t24.com.tr/haber/hacettepe-universitesinin-kompozit-doku-nakli-ruhsati-iptal-edildi,200035.

  57. 57.

    Under Turkish law, the husband is presumed to be the father of a child born within the marriage, and his consent must be sought for the abortion. Article 13/d of the Order relating to the execution and control of abortion and sterilisation services, dated 14.11.1983. See JO, no. 18255, 18.12.1983.

  58. 58.

    http://t24.com.tr/yazarlar/dilara-gurcu/erkek-elleri-ayse-kocaoglunun-bedeninden-cektik-sira-geri-kalan-tum-kadinlarin-kurtaj-hakkinda,11357 (31.3.2015).

  59. 59.

    “25 Şubat 2015 Çarşamba”, CNN TÜRK TV, Release Date: February 25, 2015, http://tv.cnnturk.com/tv-cnn-turk/programlar/her-sey/25-subat-2015-carsamba.

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Authors and Affiliations

  1. Faculty of Law, Civil Law and Obligations Law Department, Istanbul University, Istanbul, Turkey

    Saïbe Oktay-Özdemir

  2. Faculty of Law, Bahçeşehir University, Istanbul, Turkey

    Gülen Sinem Tek

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  1. Saïbe Oktay-Özdemir
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Correspondence to Saïbe Oktay-Özdemir .

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  1. University of Rennes, Rennes, France

    Brigitte Feuillet-Liger

  2. Columbia University, New York, USA

    Kristina Orfali

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Oktay-Özdemir, S., Sinem Tek, G. (2018). Ambivalence of the Relationships Between Dignity and Freedoms in Turkish Law. In: Feuillet-Liger, B., Orfali, K. (eds) The Reality of Human Dignity in Law and Bioethics. Ius Gentium: Comparative Perspectives on Law and Justice, vol 71. Springer, Cham. https://doi.org/10.1007/978-3-319-99112-2_18

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