Comments of the United Nations Country Team in Turkey on the Draft Law that Amends the Law on Civil Registration Services and Some Other Laws

Transcription

1 Comments of the United Nations Country Team in Turkey on the Draft Law that Amends the Law on Civil Registration Services and Some Other Laws United Nations Turkey, Yıldız Kule, Yukarı Dikmen Mahallesi, Turan Güneş Bulvarı, No: 106, Çankaya Ankara/Turkey 1

2 Table of Contents 1. Introduction Legal Framework and International Standards... 3 A. The Draft Law... 3 B. International Standards General Remarks and Recommendations Remarks and Recommendations on Civil Registration Law... 5 A. Civil registration of foreigners resides in Turkey (Art. 8)... 5 B. Notification (of birth) obligation and deadlines (Art. 15)... 6 C. Authority conducting marriage (Art. 22)... 9 D. Address registration system notification obligation and duration (Art. 50) Remarks and Recommendations on the Law on Turkish Citizenship A. Exceptional cases for acquisition of Turkish citizenship (Art. 12) B. Acquisition of Turkish citizenship by marriage (Art. 16) Concluding Remarks

3 1. Introduction The Draft Law that Amends the Law on Civil Registration Services and some other Laws (hereinafter the Draft Law ), which was prepared by the Ministry of Internal Affairs, was sent to the Turkish Grand National Assembly (TBMM) on 25 July 2017 by the Prime Ministry upon the decision of the Cabinet dated 17 July The present Comments were prepared on the basis of the contribution of the members of the United Nations (UN) Result Group on Democratic Governance and Human Rights and Result Group on Gender Equality and Women s Empowerment on behalf of the United Nations Country Team in Turkey (UNCT). The scope of the Comments mainly covers the Draft Law submitted to the TBMM. The Comments raise key issues and provide indications of areas of concern. In the interest of conciseness, the Comments focus more on challenging areas other than on the positive aspects of the Draft Law and the recommendations are based on international standards. 2. Legal Framework and International Standards A. The Draft Law The Draft Law consists of 37 articles and amending the Law No.5490 on Civil Registration Services and the Law No on Turkish Citizenship. The Draft Law is aimed at carrying out more efficient operations and transactions related to civil registration services, increasing speed and quality in service provision, ensuring citizen satisfaction and shortening bureaucratic processes 1. It is also envisaged that in light of the emerging and changing conditions of the day, the provisions related to the acquisition of Turkish citizenship will be amended. 2 1 Preamble of the Draft Law 2 Preamble of the Draft Law 3

4 B. International Standards The Comments analyse the Draft Law from the viewpoint of its coherence with relevant international human rights standards. Turkey is party to most of the core UN human rights treaties. Article 90 (5) of the Constitution of the Republic of Turkey states that In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. Therefore, UNCT would like to recall the UN human rights treaties that according to Article 90 of its Constitution, should be taken into consideration as a guiding normative framework for such legal reforms: - Universal Declaration of Human Rights; - International Covenant on Civil and Political Rights (ICCPR) 3 ; - International Covenant on Economic, Social and Cultural Rights (ICESCR) 4 ; - UN Convention on the Rights of the Child (CRC) 5 ; - UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 6 ; - UN Convention on the Rights of the Persons with Disabilities (CRPD) 7 ; - International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 8 ; - Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 9 ; Convention and 1967 Protocol Relating to the Status of Refugees 10. Similarly, the key regional, mainly Council of Europe (CoE) instruments, ratified by Turkey are: 3 Signed on 15 August 2000 and ratified on 23 September Signed on 15 August 2000 and ratified on 23 September Signed on 14 September 1990 and ratified on 04 April Ratified on 20 December Signed don 30 March 2007 and ratified on 28 September Signed on 13 October 1972 and ratified on 16 November Signed on 08 September 2000 and ratified on 19 August Signed on 30 March 1962 and ratified on 31 July

5 - Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 11 ; - Council of Europe Convention on Action against Trafficking in Human Beings 12 ; - Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) 13 ; - Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (The Lanzarote Convention) 14. There is also a rich set of soft law instruments in the light of which the UNCT examined the Draft Law. These instruments include: - UN Human Rights Committee, General Comment No. 18 on Non-Discrimination; - UN Committee on Economic, Social and Cultural Rights, General Comment No.20 on Non-Discrimination on Economic, Social and Cultural Rights; - UN Human Rights Council Resolution on Birth Registration and the right of everyone to recognition everywhere as a person before the law. 3. General Remarks and Recommendations As a general recommendation, the UNCT encourages the authorities to review the Draft Law (and it is secondary legislation to be prepared) as a whole with a view to reflect principles and recommendations that are stipulated in the above mentioned international and regional treaties, its optional protocols, general comments, guidelines and observations of the international human rights monitoring bodies. 4. Remarks and Recommendations on Civil Registration Law A. Civil registration of foreigners resides in Turkey (Art. 8) It should be noted that Law No on Foreigners Residence and Travel in Turkey was abolished with the enforcement of Law No on Foreigners and International Protection 11 Signed 04 November 1950 and ratified on 18 May Signed on and ratified Signed on and ratified on Signed on25/10/2007 and ratified on 07/12/

6 (see Art. 122 and 124). However, the second paragraph of Art. 8 of the Civil Registration Law makes reference to the abrogated law by stating that Provisions of Law No dated 15/7/1950 on Foreigners' Residence and Travel in Turkey are reserved ". Recommendations: The second paragraph of the Art. 8 of the Law on Civil Registration Services should be reformulated in accordance with the Art. 122 and 124 of the Law No B. Notification (of birth) obligation and deadlines (Art. 15) While verbal notification of birth has already been regulated under the current version of the Law on Civil Registration, lack of clarifications on procedures is observed to have led to different implementations across Turkey. Hence, detailed provision on the modality of verbal notification and procedural guarantees will prevent inconsistent implementations across the country. The important changes brought in this article is to replace the paragraph "If the concerned person is unable to submit any document, his/her verbal statement is taken as a basis and the notification is written to minutes and birth minutes is signed by who made the notification and the officials" with these two articles "Birth notification made under the supervision of healthcare personnel is made by a report or a document to be prepared by the doctor or healthcare personnel following-up the mother during her pregnancy and Birth notifications of children born outside the follow-up of healthcare personnel are made through verbal declaration to civil registers. In order to confirm the declaration, by order of local authorities, an investigation is carried out through family physicians." One of the most critical issues seen in the proposed article is that an automatic investigation is not conducted when a verbal notification is made, but an investigation is initiated only by the order of the local authority. In addition, the regulation does not envisage any sanctions if the investigation is not initiated or fully performed. It should be noted that an investigation will be initiated only by the order of the local authority however, so as to give such an order the local authority should be informed about such verbal notification. Non-performance of the investigation particularly likely to result in the possibility of registration of births in cases of 6

7 pregnancy and birth due to incest relationship, pregnancy and birth due to polygamy, pregnancy and birth due to rape, pregnancy and birth due to child abuse and child marriage. The Draft Law states that investigation will be carried out by the family physicians upon the order of the local authority. However, in practice, conducting such an investigation is not suitable with the workload, education, time, professional characteristics and infrastructure of the family physicians. Taken into consideration the education, time constraints and work flow, it is not possible for the family physicians, who provide individual health services and offer a wide range of services to the self-enrolled population, to duly and properly carry out such investigations, which includes family interviews, social study. Therefore, it is important that the investigation process is handled in a holistic fashion in which health, security and protection needs of the individuals are carefully considered, and therefore along with the family physicians, security forces as well as social workers (MoFSP), and in extreme situations - members of the judiciary are included. The draft article also expects the healthcare personnel who follows the pregnancy (the definition of follow-up is not clear, also follow-up may not be regular or can be at the last stage of the pregnancy) to report a birth that s/he had not participated in. It is not legally correct for a healthcare personnel to make an accurate statement about a birth that s/he is not participated in and has only 2 nd hand and non-medical information about. This may pave the way for unreal or unreliable declaration. It is important to note that the civil registration system has been improved in the last 15 years in Turkey and it has been achieved that more than 98% of births are carried out in medical facilities and health facilities. For continuation of this positive trend, strict rules and procedural safeguards should be considered for verbal notifications. On the other hand, taking into consideration the right to a name and nationality of the child after birth, it is important that the births of children born outside health institutions or at home in the absence of health professionals are registered. Since birth registration is the official recording of the birth of a child through a State s administrative process, it allows for permanent and official record of a child s existence, and thus it establishes a child s legal identity. This is considered as an important safeguard for refugee and asylum seeker children as without birth registration and documentation, children may have problems proving their links to a State, which puts them at risk of statelessness. Nevertheless, the verbal notification without strict and clear rules and procedural 7

8 guarantees, might prevent the monitoring and identification of child marriages; carry the risk of hiding children born due to rape and force girls and women to give birth at home/outside the health facilities. This may also increase prenatal and postnatal mortality as well as maternal mortality rates. While Paragraph 4 regulates research through family practitioner with the instruction of administrative chief to certify the testimony, it is important to note that many Syrians and other refugees and asylum seekers do not follow-up pregnancy through family physicians. In light of similar existing challenges, it will be beneficial to outline further procedural guarantees concerning verbal notification of birth. In case of no follow-up, there is risk that harmful practices such as incest, polygamy, child marriage, forced marriage, rapes will continue to be hidden and violate the legal provisions and principles. Recommendations - In order to prevent harmful practices such as early, forced and child marriages, certain procedural guarantees should be in place and modalities on verbal reporting should be provided in the law. Detailed provisions also would end the inconsistent applications in the field. - The necessity of prenatal and postnatal care and childbirth is important both for maternal and child health and for the detection of early, forced and child marriages and therefore, it should be regulated in the law. In addition, despite the availability of the health services, cases in which the individuals refuse benefitting from the health services provided at the healthcare institutions and give birth at home should be regarded as a kind of negligence because of the risk of mother and child health. Therefore, the law should ensure that birth at home is not encouraged and access to health services is promoted. - It is suggested that sanctions should be imposed if there is no order of investigation or investigation is not duly carried out. Furthermore, the article should also clearly outline the obligations of the Civil Registration Departments under the Turkish Criminal Code, for necessary legal action to be taken in case of early and child marriages. - The authority to initiate investigation upon verbal notification should be given to the bar associations and judiciary. It is recommended that the investigation to be executed by a commission consisting of members from the Provincial Directorate of Family and Social Policies, Provincial Directorate of Population and Citizenship Affairs, Provincial Public Health Directorate, Secretariat of Public Hospitals and Bar Association, including at 8

9 least one social worker, healthcare personnel, official of the Ministry of Interior and lawyer. - It is proposed to outline further procedural guarantees concerning verbal birth notification in the absence of family physicians follow-ups. Especially with regards to asylum-seekers and refugees, who may not give birth in health institution, this issue will be very beneficial if it is regulated in detail. C. Authority conducting marriage (Art. 22) Although the main rule in article 22 on conducting marriages remains the same, "provincial and district muftis" are added to the list of officials who can conduct marriages. According to the statistics, in 2016, 28.2% of women and 5.6% of men between the age of 15 and above were married before the age of In 2015, over 31,300 girls between 16 and 17 got married 16. In 2015, over 18,000 girls under the age of 18 and over 240 girls under 15 gave birth. This data indicates that there is still a significant prevalence of child marriages in Turkey which, based on national legislation and Turkey s international obligations, shall be combatted. While acknowledging these facts, and in order to contribute to make these cases more visible and therefore preventable, the proposed changes shall support the conditions of marriage as per the Civil Code. Moreover, relevant provisions of the Turkish Penal Code, in order to prevent misconduct as well as to protect the government officials against conducting transactions under threat, should be referred in the legislation. In addition to these legal safeguards, there shall be a legal commitment to provide training to religious officials who will have the legal authority on how to conduct investigation before the marriages regarding whether the couple is eligible for marriage; how to inform the community on the effects of harmful practices such as child marriage, how the marriage should be conducted; whether any criminal sanctions will be imposed if unlawful marriage is conducted and how to resolve possible negative consequences in these cases. Furthermore, the legislations that concern all citizens, such as the Law on Civil Registration Services, should not lead to any discrimination. Given the existence of persons belonging to 15 Turkish Family Structure Survey, TurkStat Marriage Statistics,

10 other registered religions who are citizens of the Republic of Turkey, the granting of the authority to conduct marriages only to authorities belong to one religion, is not coherent with the principles of equality and non-discrimination as ensured in international conventions to which Turkey is a party, such as the Universal Declaration of Human Rights, UN Covenant on Civil and Civil Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the European Convention on Human Rights. In this regard, authorities should ensure that All are equal before the law and are entitled without any discrimination to equal protection of the law. Since no change is stipulated in the last sentence of Article 22 Paragraph 2 If one of the spouses is a foreigner, marriage registry offices of municipalities, and heads of civil registration offices are authorized to conduct the marriage, it is interpreted that muftis are not authorized to conduct marriages of asylum-seekers and refugees. On the other hand, taking into consideration that marriage ceremonies are carried out by religious officials in some refugee producing countries, the proposed change may lead to misperception among the refugee population living in Turkey and may pave the way for or increase the child marriage and polygamy cases. Recommendations - A provision which clearly underlines the responsibility of the concerned officials can be added in the article such as: - The marriage officers who use this authority in any kind of unlawful action shall be subject to the provisions of art. 257 of the Turkish Penal Code. The marriage officers, in case of an unlawful situation which needs further protection of the concerned persons, such as child marriage, should inform the relevant authorities as soon as possible. The provisions of the Law on Trial of Civil Servants and Other Public Officials dated and numbered 4483 shall not be applied to public officials in connection with the duties falling under the scope of this Law. - In order the strengthen the legal aspect of the combat against child marriages, amending the Turkish Penal Code might be considered, in order to, and without any exceptions, increase the official marriage age to 18. In case any exceptions would be considered, the objective assessment criteria are recommended to be embedded in the policy framework. - In this context, forced marriage of a child must be associated with the child's sexual abuse and should be subject to penal sanctions accordingly. 10

11 - Besides sanctions, compulsory and comprehensive trainings for Muftis should be conducted before the enforcement of the law. - The proposal should be reviewed in the light of the principles of equality and nondiscrimination which are enshrined in the international conventions that are ratified by Turkey. D. Address registration system notification obligation and duration (Art. 50) As for paragraph 7, the requirement of an official document for address registration, in case of doubt on the statements of the person, may create additional challenges for refugees in registering their addresses in the system. Recommendations: - In view of the known barriers, safeguards such as research by law enforcement authorities and/ or certification by mukhtars can be considered to overcome this challenge. 5. Remarks and Recommendations on the Law on Turkish Citizenship A. Exceptional cases for acquisition of Turkish citizenship (Art. 12) The current version of the article does not regulate an application procedure for exceptional acquisition of Turkish citizenship; and the regulation in the draft does not include procedural aspects such as the competent authority, when and how such an application can be filed. Recommendations - If an application process is foreseen with the amendment, it is suggested that the application procedure is outlined. B. Acquisition of Turkish citizenship by marriage (Art. 16) The term of "public morality" has been added in the article for acquisition of Turkish citizenship through marriage. "Public morality" is an ambiguous concept and can be closely linked to the worldview/interpretation of the person/institution that will apply the law. The concept public 11

12 morality is not defined in the legislation, therefore it is open for a wide of interpretation some of which may adversely affect men, women boys and girls. Recommendations: - It is suggested that the requirement of "public morality" should be excluded from the Draft Law. 6. Concluding Remarks UNCT remains at the disposal of the Turkish authorities for any further technical assistance in this matter. END 12