Legal history of Turkey

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The beginning of the modern legal history of Turkey is usually with the treaty of alliance ( Ottoman سند اتفاق İA Sened-i İttifāḳ , also 'Document of Unanimity, Alliance Pact') between the central power in Istanbul and regional rulers (aʿyān, derebey) in Anatolia and Rumelia in 1808. The reform efforts that were already in the bud here continued in the reform decrees of 1839 and 1856. The European influence can already be seen here; A detachment from archaic legal ideas can be found in the guarantee of property and the legal principle nulla poena sine lege . The reform orders are considered to be the beginning of the Tanzimat period (تنظيمات خيریه / Tanẓīmāt-ı Ḫayrīye  / 'charitable ordinances'), which eventually led to the civil and criminal law codifications of Turkey. The reforms resulted in the enactment of the so-called " Basic Law " (قانون اساسی / Ḳānūn-ı Esāsī ) on December 23, 1876, whereby a constitutional monarchy existed for the first time in what is now Turkey . However, the constitution was not granted a long period of validity: As early as 1878, Abdülhamid II effectively repealed it when parliament was closed. After the revolution by the Young Turks in 1908, the second Ottoman constitutional period began under the reformed constitution of 1876 .

The end of the First World War also marked the end of the Ottoman Empire. The establishment of the Grand National Assembly in Ankara by Mustafa Kemal Pascha (Ataturk) in 1920 represented a break with the existing political system and brought about the provisional constitutional law of 1921 as the most important legal act . For the first time the state is referred to as Turkey and is fully democratically legitimized; The stipulated unit of power, however, was in contradiction to the classic conception of the separation of powers . The sultanate remained in existence until 1922, the caliphate until 1924, and Islam remained the state religion until 1928. New head of state of the republic established by an amending law on October 29, 1923 (جمهوریت / cumhūrīyet ) became the President of the Republic elected by the plenary of the Grand National Assembly from among its members (رئيس جمهور / reʾīs-i cumhūr ).

A constitution was adopted just three years later, the Turkish constitution of 1924 . With 36 years of validity, it is currently (2016) the Turkish constitution with the longest period of validity. Its central ideological principle was the six pillars of Kemalism . The great national assembly remained the organ of the legislature, but was also able to determine the interpretation of laws in a binding manner. The organization of the courts was not regulated in the constitution, but was carried out by simple law; a separate constitutional jurisdiction did not exist. The constitution also contained a catalog of fundamental rights; so-called basic social rights were missing. All basic rights were provided with a simple legal reservation.

The radical social reforms also affected civil law and led to a total reception of the Swiss civil code (see Turkish civil code ) and the law of obligations . The reasons why the choice fell on Swiss law of all things are controversial in research. Hirsch sees this as a mere coincidence: Mahmut Esat , then Minister of Justice of Turkey, studied in Switzerland himself and was therefore convinced that the Swiss Civil Code was the most modern civil code. In contrast, Sauser Hall emphasizes the actual practical advantages: The French language was more widespread in Turkey than the German and thus simplified the translation of the law and made it possible to use the existing Swiss commentary literature.

The complete break with the law of the Ottoman Empire was not without practical problems: the legal habits of the population and modern Western European law rubbed against each other, especially in family law. It was firmly anchored in the legal feeling of the peasant and petty bourgeois population that a marriage could be concluded by contract of the fiancé or their parents in front of witnesses and divorced by talaq . The participation of a clergyman was common ( imam marriage ) but not necessary. The civil marriage, which has been officially in force since 1926, was therefore simply ignored for a long time. The consequence was that large numbers of newborns were formally born out of wedlock. This deficiency had to be remedied regularly through subsequent legitimation by law.

After the military coup in 1960 , a new constitution had to be drawn up again. In its detailed catalog of basic rights, this also contained basic social and economic rights (right to work, right to health); the basic rights could be restricted by simple legal reservation, but were additionally secured by the guarantee of their essential content. The legislature consisted of the Grand National Assembly of Turkey, which was divided into two chambers (National Assembly and Senate). The judiciary was strong and independent. In addition to the ordinary jurisdiction (with the court of cassation at the top) there was a separate military jurisdiction ; the only full administrative court was the Council of State . Conflicts of jurisdiction and the maintenance of uniform jurisdiction were entrusted to the conflict of jurisdiction court . A separate constitutional court was provided for constitutional disputes ; a constitutional complaint, however, was not one of the types of procedure permitted here. In 1971 and 1973, constitutional amendments made it possible to encroach on fundamental rights and gave the government the option of issuing ordinances with the force of law. State security courts were introduced for political crimes, but this was reversed by the Constitutional Court as early as 1976.

The current constitution of Turkey owes its creation to the military coup of 1980 . After a referendum on November 7, 1982, it came into force two days later. In order to facilitate Turkey's admission to the European Union, a referendum took place on November 12, 2010 with the aim of changing the constitution.

References and comments

  1. ↑ Christian Rumpf: The Turkish constitutional system. Introduction with complete constitutional text. Harrassowitz Verlag, Wiesbaden 1996, ISBN 978-3-447-03831-7 , p. 37.
  2. ↑ Klaus Kreiser: The Ottoman State 1300-1922. 2nd Edition. Oldenbourg Wissenschaftsverlag, Munich 2008, ISBN 978-3-486-58588-9 , p. 36.
  3. ^ Edict of Gülhane ( German translation ).
  4. ↑ Renewal Decree ( German translation ).
  5. ↑ a b c d Christian Rumpf : Introduction to Turkish law . CH Beck, Munich 2016, § 6. Constitutional Law.
  6. ↑ Act No. 364 of October 29, 1923 on the amendment of certain provisions of the Constitutional Law for the sake of explanation ( German translation ).
  7. ↑ a b Konrad Zweigert , Hein Kötz : Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, § 16 III., P. 175 sq .