The European Court of Human Rights (ECtHR) has ruled that there is a rights violation in a precondition for divorced women in Turkey to wait 300 days before remarrying.
The court announced its ruling concerning an application filed by a Turkish woman named Nurcan Bayraktar, 50, in 2020 on the grounds that Article 34 of the European Convention on Human Rights (ECHR) for the protection of rights and fundamental freedoms was violated.
Bayraktar’s application concerned the refusal of the Turkish national authorities of her request that she be exempted, without undergoing a medical examination to determine whether she was pregnant, from the 300-day waiting period provided for by Article 132 of the Turkish Civil Code.
Relying on Articles 8, 12 and 14 of the ECHR, she alleged that the obligation imposed on divorced women to respect a waiting period (iddah) of 300 days unless they prove that they are not pregnant constitutes discrimination and a violation of their rights to privacy and marriage.
Bayraktar divorced her husband in a family court in İstanbul in 2012. The court’s decision became final in 2014 after it was upheld by an appeals court in January 2014. In July 2014, the woman asked a family court in İstanbul to lift the 300-day waiting period for her without having to submit a medical report proving that she was not pregnant to be able to remarry. She claimed the relevant article in the Turkish Civil Code constituted discrimination based on sex and that it was therefore contrary to the Turkish Constitution and to several treaties for the protection of human rights and the fight discrimination against women to which Turkey is a party, including the ECHR. She also asked that the case to referred to the Constitutional Court for a preliminary ruling on the constitutionality of this provision.
When her attempts to seek justice in Turkish courts including an individual application at the Constitutional Court failed, Bayraktar applied to the ECtHR as a last resort, which on Tuesday announced its ruling in her favor.
The rights court ruled that Turkey had violated the woman’s rights with respect to Articles 8 and 14 of the ECHR, which concern the right to respect for family and private life and the right not to be discriminated against in respect of these rights, respectively.
In Turkey, where President Recep Tayyip Erdoğan strongly promotes establishing families and having at least three children, women complain about discriminatory practices against them in the law.
The iddah period has its roots in Islam according to which women are expected to wait for three months from the day of divorce to be able to marry another man. This waiting period is aimed at determining the child’s father if the woman is pregnant at the time of the divorce.
In its ruling, the ECtHR said that the objective of preventing “the confusion of blood,” in other words allowing biological determination of paternity through the 300-day waiting period seems unrealistic in a modern society.
The ECtHR considered in the present case of Bayraktar that the finding of a violation in itself provides just satisfaction sufficient for any non-pecuniary damage suffered by the applicant and that Turkey pay to the woman 564 euros for costs and expenses.
According to statistics announced by the ECtHR in January, Turkey has approximately 20,100 applications pending before the ECtHR, which makes it the highest case-count country since Aug. 1, 2022.
Turkey, where human rights violations are widespread, has become the highest case-count country, replacing Russia, since Russia was excluded from the Council of Europe in March 2022 due to its war on Ukraine.