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Turkey: Constitutional Court Finds Violation of Constitutional Rights in Courts’ Failure to Decide on Abortion Authorization in Pregnancy Resulting from Sexual Assault

(Sept. 30, 2020) On September 10, 2020, a judgment of the Grand Chamber of the Constitutional Court of Turkey in the case of R.G. was published in the Official Gazette. The Court found that a minor crime victim’s right to protect and improve her corporeal and spiritual existence enshrined in article 17 of the Constitution of Turkey was violated by the judicial system’s failure to authorize the termination of her pregnancy allegedly resulting from sexual assault in time for her to undertake the procedure in accordance with the relevant law.

Background

The applicant, R.G., a minor at that time, was discovered to be pregnant during a medical examination. Her pregnancy was in the thirteenth week. R.G. stated to the doctors that she was forced to have sexual relations by a number of minor males and adult men in circumstances that involved sexual assault and blackmail, and that the pregnancy was a result of these relations. Following these statements, the prosecutor’s office was involved with the case.

Through the prosecutor’s office, R.G.’s parents requested that a criminal court of the peace allow the termination of their daughter’s pregnancy in accordance with article 99 of the Turkish Penal Code (TPC), which allows victims of crimes to terminate their pregnancies up to the twentieth week where the pregnancy results from criminal activity. Law No. 2827 on Population Planning otherwise allows voluntary termination of pregnancies up to the tenth week unless there is a risk of fatal harm to the mother, or the fetus has a condition that will result in the child, or the child’s descendants, being heavily disabled.

The court rejected the parents’ request on the grounds that (1) the request did not include the request and consent of the minor victim, which is necessary to the process as termination of pregnancy is a right that is strictly personal, (2) the law was not clear as to whether article 99 could be applied where the only crime is sexual relations with a minor [without coercion] and the criminal investigation has not yet revealed the commission of any other crime, and (3) Law No. 2827 does not allow for an abortion beyond the tenth week of pregnancy in the absence of medical necessity and unless article 99 can be applied, and no medical report indicating a medical necessity was submitted in the file.

Following this decision, and after getting a forensic medical report recommending that an abortion could be allowed in light of her statements implicating crime, psychological condition, and her status as a minor, R.G. herself made a request via the prosecutor’s office to the criminal court of the peace to allow the termination of her pregnancy in accordance with article 99 of the TPC.

This time, the court refused the request on the grounds that the report did not include a comparative analysis of the risks that the pregnant mother would face if the pregnancy was continued or terminated, and thus did not make a finding as to whether there would be a fatal risk to the mother should abortion not be allowed. The court held that allowing for an abortion without it being necessary for the health of the mother would violate the right to life of the fetus.

R.G. objected to the decision, arguing that article 99 of the TPC should be applied. However, due to differences of opinion between the courts as to the interpretation of the procedural rules regarding objections made to decisions involving article 99 of the TPC and Law No. 2827, the objection to the original decision bounced between criminal and civil courts on procedural grounds, causing R.G. to pass the twentieth  week of pregnancy, and rendering article 99 of the TPC inapplicable.

R.G. applied to the Constitutional Court claiming violation of her constitutional rights.

Judgment

The Court found that the limits established by law on legal abortion had the legitimate objective of balancing the woman’s corporeal and spiritual existence and her rights to personal autonomy and psychological and physical health with the fetus’s right to life, in light of the moral, ethical and religious values predominant in the society (§ 93).

While recognizing that the government has a wide margin of appreciation in determining the proper balance between the rights involved, the Court explained that the government’s interference in a woman’s rights enshrined in article 17 of the Constitution would only be lawful if the interference is effective and sufficient to address the legitimate aim, and is proportional to the aim (§§ 95, 96, and 99). The Court explained that the effectiveness and sufficiency of the measures and decisions in the matter of termination of pregnancies are closely related to their timely and sufficiently rendering by public authorities, and authorities’ failure in this regard could be constitute an infringement of the right by itself (§ 98).

The Court reasoned that the judiciary’s failure to address R.G.’s arguments regarding the applicability of article 99 of the TPC and delay in providing her with a final decision—regardless of the outcome—was a disproportionate interference with her rights, which tipped the just balance sought by the government’s policy against R.G.

The Court held that R.G.’s article 17 rights were violated and awarded her TRY 100,000 (about US$13,082) in non-pecuniary damages.