10.6092/issn.2531-6133/10967
In many respects, Turkey is an exception among Muslim countries. Whilst being a secular democratic state, Turkey still struggles, however, with some remnants of its religious and socio-cultural heritage. The issue of forced marriage of children is one of those issues. Marriage is commonly defined as a union concluded by parties with their full and free consent. If consent is lacking, a forced marriage occurs. In the case of a forced marriage, consent is lacking because one of the prospective spouses does not give her/his consent freely, or sometimes because she/he is incapable of giving consent because of her/his age. As a founding member of the Council of Europe, Turkey not only ratified the European Convention on Human Rights (ECHR) in 1954 and Protocol Nr. 1, but it has also ratified many of the core international documents on human rights and the rights of children, such as the U.N. Convention on the Rights of the Child, the U.N. Convention on the Elimination of All Forms of Discrimination against Women. Nevertheless, the forced marriage of children is still a prevalent social problem in Turkey, and in the majority of cases, girls are the victims of such practices. This article examines the factors behind the forced marriage of children in Turkey, while exploring the current legal background and Turkey’s international legal commitments to fight against such practices. Finally, the article suggests the reinforcement of available legal remedies in order to prevent the forced marriage of children
application/pdf
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Volkan Maviş
University of Bologna Law Review
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The Unacceptable Spectre of Under-Aged Forced Marriage in Turkey
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Volkan Maviş
2020/05/12
10.6092/issn.2531-6133/10967
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The Unacceptable Spectre of Under-Aged Forced Marriage in Turkey
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    llVOLUME 5                                      llISSUE 1                          ARTICLES & ESSAYS



                                 UNIVERSITY OF BOLOGNA LAW REVIEW
                                h ps://doi.org/10.6092/issn.2531-6133/10967
                                                      A

       The Unacceptable Spectre of Under-Aged Forced Marriage
                                                  in Turkey
                                  BAHAR ÖCAL APAYDıN, VOLKAN MAVIş †


                                                    ABSTRACT

    In many respects, Turkey is an exception among Muslim countries. Whilst being a secular
    democratic state, Turkey still struggles, however, with some remnants of its religious and
    socio-cultural heritage. The issue of forced marriage of children is one of those issues. Marriage is
    commonly defined as a union concluded by parties with their full and free consent. If consent is
    lacking, a forced marriage occurs. In the case of a forced marriage, consent is lacking because one
    of the prospective spouses does not give her/his consent freely, or sometimes because she/he is
    incapable of giving consent because of her/his age. As a founding member of the Council of
    Europe, Turkey not only ratified the European Convention on Human Rights (ECHR) in 1954 and
    Protocol Nr. 1, but it has also ratified many of the core international documents on human rights
    and the rights of children, such as the U.N. Convention on the Rights of the Child, the U.N.
    Convention on the Elimination of All Forms of Discrimination against Women. Nevertheless, the
    forced marriage of children is still a prevalent social problem in Turkey, and in the majority of
    cases, girls are the victims of such practices. This article examines the factors behind the forced
    marriage of children in Turkey, while exploring the current legal background and Turkey’s
    international legal commitments to fight against such practices. Finally, the article suggests the
    reinforcement of available legal remedies in order to prevent the forced marriage of children.


                                                    KEYWORDS
                             Forced Marriage; Child Marriage; Women’s Rights; Consent




†
     Dr. Bahar Öcal Apaydın, Assistant Professor of Law, Eskişehir Osmangazi University (Turkey); Ph.D., Ankara
    University (Turkey); LL.M., Ankara University (Turkey); LL.B., Ankara University (Turkey). Dr. Öcal Apaydın
    is focusing particularly on children’s and women’s civil rights from human rights perspective. Furthermore,
    she specializes in contract law, real securities and liability law.
    Mr. Volkan Maviş, Ph.D. candidate, Research Assistant of Law, İnönü University (Turkey); LL.M., University of
    Sussex (U.K.); LL.B., Gazi University (Turkey). Volkan Maviş specializes in international criminal law, human
    rights and environmental criminal law.




                                                         28
2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol: 5 :1


                                           TABLE OF CONTENTS


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        29
1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         32
        1.1. The Concept And Terminology Regarding Forced Marriage From International
           And Turkish Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           32
        1.2. Legal Modernization Of Turkey: The Story Of Westernization . . . . . . . . . . .               35
        1.3. Turkey’s Obligations Emerged From International Law Based On Elimination Of
           Forced Marriages Of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           39
2. Turkey’s Challenges Of Marriage Law, Religious, Socio-cultural And Legal Practices On
   Marriages Of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          41
3. Socio-cultural And Economic Determinants Of Forced Marriages Of Children In Turkey . .                   46
4. Suggestion: Rearrangement Of Legal Remedies Against Forced Marriage Of Children . . .                    48
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        57




     INTRODUCTION

According to the United Nations Populations Fund’s (UNFPA) estimation, over 10 million
child marriages occur in 107 low-income countries each year.1 Furthermore, 14.2 million
girls under the age of eighteen are expected to be married every year, which means that
39,000 girls marry every day.2 Unfortunately, the vast majority of the aforementioned girls
marry or enter into a union against their will, in many cases, with men who are much
older than them,3 and Turkey is not an exception. In Nevşehir, a city in central Anatolia,
the Office of the Prosecutor filed a case against the alleged husband and the father of a
fifteen-year-old girl for sexual molestation. The defendants argued that early marriage
is a tradition in that part of Turkey and that many people get married in the same way.4
Moreover, it was argued that they were not aware of the fact that their actions constituted
a violation of the criminal code. The Nevşehir Court of Assize decided that there was no
ground for prosecution on the basis that “[i]n the social and cultural atmosphere they live
in, many children generally get married before appropriate age and early marriage is not
1
  UNITED NATIONS POPULATION FUND, MARRYING TOO YOUNG: END CHILD MARRIAGES 6 (2012), http://www.unfpa.or
  g/end-child-marriage.
2
  Id.
3
  See UNICEF, PROGRESS FOR CHILDREN, A REPORT CARD ON ADOLESCENTS 5 (2012), https://www.unicef.org/publica
  tions/files/Progress_for_Children_-_No._10_EN_04232012.pdf (last visited Oct. 18, 2017).
4
  It is a fact that not all early marriages are made under force. However, statistics show that 46.8% of
  early marriages are decided by parents in Turkey, see HACETTEPE ÜNIVERSITESI NüFUS ETüTLERI MUDURLUGU,
  TüRKİYE’DE KADINA YöNELIK AILE ICI SIDDET ARAşTIRMASI [A STUDY ON DOMESTIC VIOLENCE AGAINST WOMEN IN
  TURKEY] 76 (2015), http://www.hips.hacettepe.edu.tr/KKSA-TRAnaRaporKitap26Mart.pdf, (last visited Oct.
  19, 2017) ; see also Geetanjali Gangoli, Melanie McCarry and Amina Razak, Child Marriage or Forced Marriage?
  South Asian Communities in North East England, 23 CHILD. & SOC. 418, 426 (2009) (arguing although most of the
  children did not regret their marriage, they could have been forced to do so in the light of social mentality
  over women).


                                                      29
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


considered illegal or inconvenient. The defendants intended to set up a happy home. In
this case, there is no sign of sexual molestation.”5
           As stated in this regrettable court decision, child marriage is still a social fact of
life in Turkey. The problem is that there is sometimes a very thin line between forced
marriage and marriage with the full and free consent of the children.6 Given the fact
that the existence of competent and informed consent is controversial where one of the
prospective spouses is a child, the possibility of a forced marriage must be taken into
consideration.7 The forced marriage of children is commonly seen as a violation of human
rights and of the rights of the children.8
           According to Article 1 of the U.N. Convention on the Rights of the Child
(hereinafter UNCRC), a child is defined as a person below the age of eighteen, unless the
laws of a particular state set a lower legal age of consent. In the Turkish legal system, the
age of majority is set at eighteen9 . Under the age of eighteen every person is considered
as a child.10 Although Turkey has ratified the UNCRC, marriage of children is still a
reality and statistics show that most of the victims are in fact girls.11 It is worth stressing
that Turkey was one of the sixty-nine states that ratified the U.N. Convention on the
Elimination of All Forms of Discrimination against Women (hereinafter CEDAW), also
considering the request of the Committees of the CEDAW and the UNCRC to the member
states “[n]ot to allow exceptions to minimum age of marriage even with consent.”

5
   Nevsehir Agir Ceza Mahkemesi [Nevsehir Court of Assize] 2010/142 E., 2012/20 K (Turk.).
6
   International documents overtly emphasize the importance of full and free consent. See, e.g., International
   Covenant on Civil and Political Rights, art. 23(3), Dec. 16, 1966, 999 U.N.T.S. 171. (ICCPR), International
   Covenant on Economic Social and Cultural Rights, art. 10(1), Dec. 16, 1966, 993 U.N.T.S. 3. and Convention
   on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, art. 1(1), Dec. 10, 1962,
   521 U.N.T.S. 231 state that marriage must be entered into with the free consent of the intending spouses.
 7
   See Loretta M. Kopelman, The Forced Marriage of Minors: A neglected Form of Child Abuse, 44 J. L., MED. & ETHICS
   173, 174 (2016).
 8
   See, e.g., G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR]; see
   also Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; Convention on Consent to Marriage,
   Minimum Age for Marriage and Registration of Marriage, Dec. 9, 1964, 521 U.N.T.S. 231; G.A. Res. 68/148,
   Child, Early and Forced Marriage (Dec.18, 2013); EUR. PARL. ASS. DEB. 29th Sess., Res. 1468 (Oct. 5, 2005);
   Forced Marriage, TRAVEL.STATE.GOV (2018), https://travel.state.gov/content/travel/en/international-
   travel/emergencies/forced-marriage.html .             See also United Kingdom Foreign & Commonwealth
   Office, the right to choose: multi-agency statutory guidance for dealing with forced marriage (2014),
   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322310/HMG_Statutory
   _Guidance_publication_180614_Final.pdf [hereinafter Commonwealth]; see also Anti-Social Behavior, Crime
   and Policing Act 2014, c. 12 (Eng.); see also supra note 1.
 9
   Türk Medeni Kanunu [TMK] [Turkish Civil Code] art. 11 (2002) (Turk.).
10
   Türk Ceza Kanunu [TCK] [Turkish Criminal Code] art. 6(b) (2005) (Turk.).
11
   In 2011, 31% of the women married under the age of 18. More specific 4.1% of women were
   under the age of 14; 23.9% were between the age of 15 and 17 when they married, see TURKIYE
   CUMHURIYETI AILE VE SOSYAL POLITIKALAR BAKANLIGI, TURKIYE AILE YAPISI ARASTIRMASI TESPITLER,
   ONERILER [THE STUDY ON FAMILY STRUCTURE IN TURKEY: RECOMMENDATIONS, SUGGESTIONS] 121 (2014),
   https://ailevecalisma.gov.tr/uploads/athgm/uploads/pages/indirilebilir-yayinlar/67-turkiye-aile-yapisi-
   arastirmasi-2013-tespitler-oneriler.pdf, (last visited Nov. 5, 2017).


                                                        30
2020]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol: 5 :1


There are many factors behind the phenomenon of forced marriages, and specifically in
the form it takes in Turkey. First of all, even though the age of majority is stated as
eighteen, the Turkish Civil Code, also accepts the minimum age for marriage as
seventeen and allows marriage of girls who are just seventeen years old upon the
consent of their guardians.12 In exceptional circumstances, the Turkish Civil Code allows
for the marriage of future spouses who are sixteen years old upon a court’s approval.13 In
addition to that, religious, social and economic factors play a key role in the creation of
such a drawback. This is in the light of the fact that statistics show that 31% of girls
under the age of eighteen got married, mostly with a religious ceremony that is not
recognised by the Turkish legal system as a “legal marriage” since marriage ceremonies
can be performed only by state officials.14 Therefore, only the marriages which are
regulated according to the Turkish Civil Code are recognised as legal.
          It is remarkable that after the wave of Muslim immigration to different countries
around the world, this problem tends to become a global issue.15 The aim of this study is
firstly to uncover the root causes of forced marriages in the form of child marriage,
examining its historical legal background as well as elaborating on certain social facts
related to Turkey. Then, the study focuses on the effect of these historical and social
facts on the law. Lastly, in order to eliminate the practice of forced child marriage in
Turkey, the study suggests a new legal approach to the problem and amendments to the
existing laws.




12
   See supra note 9, art. 124(1).
13
   Id. art. 124(2).
14
   See Nazlan Ertan, Early Marriage, Lifelong Abuse, HURRIYET DAILY NEWS (Nov.                       25, 2016),
   http://www.hurriyetdailynews.com/early-marriage-lifelong-abuse-106543.
15
   Over 3.4 million registered Syrians currently live in Turkey which is the largest host of the refugees in the
   world, see DISASTER AND EMERGENCY MGMT. AUTH., SYRIAN WOMEN IN TURKEY 27 (2014), https://data2.unhcr.or
   g/en/documents/download/54512 (last visited Oct.           18, 2017); statistics and reports show that
   the frequency of early marriages among the female Syrians in Turkey is considerably high, id
   est, nearly 15% females in the 15-18 age group are married, mostly by reason of economical
   motivations, see Disaster and Emergency management Authority, Syrian Women in Turkey 27 (2014),
   https://data2.unhcr.org/en/documents/download/54512.


                                                      31
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


      1. BACKGROUND

     1.1. THE CONCEPT AND TERMINOLOGY REGARDING FORCED MARRIAGE
     FROM INTERNATIONAL AND TURKISH PERSPECTIVES

It can be argued that reaching a legal definition of forced marriage is rather problematic
due to the divergent definitions in different parts of the world.16 In fact, forced marriage is
best defined negatively, with reference to examples of unions that do not constitute forced
marriage such as arranged marriage which requires the consent of both parties.17 On the
contrary, in the study carried out by the Council of Europe, forced marriage is considered
as an umbrella term to cover

             [S]lavery, arranged marriage, traditional marriage, marriage for reasons of
             custom, expediency or perceived respectability, child marriage, early
             marriage, fictitious, bogus or sham marriage, marriage of convenience,
             unconsummated marriage,              putative marriage,         marriage to acquire
             nationality and undesirable marriage – in all of which the concept of
             consent to marriage is at issue.18

Although different approaches have been taken for defining forced marriage, one main
factor can be seen in all of them: lack of consent.19 In this context, in the most widely-
accepted definition, the Foreign and Commonwealth Office of the United Kingdom states
that “[a] forced marriage is a marriage in which one or both spouses do not (or, in the
case of some adults with support needs, cannot) consent to the marriage and duress is
involved” (alteration to the original).20
           In order to attain an explicit definition of forced marriage, the terms “marriage”
and “forced” need to be clarified.21 The first definition of marriage is contained in the
U.N. Universal Declaration of Human Rights (hereinafter UDHR) which was proclaimed
on 10 December 1948 as follows: “[m]arriage shall be entered into only with the free and
full consent of the intended spouses.”22 Although various international and regional
human rights documents contain provisions regarding basic standards of marriage, such
as the equal right to enter into marriage, none of them provides a legal definition of
16
   See generally Neha Jain, Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution, 6 J.
   INT’L. CRIM. JUST. 1013 (2008).
17
   See, e.g., Frances Simmons & Jennifer Burn, Without Consent: Forced Marriage in Australia, 36 MELB. U. L. REV.
   970, 973 (2013).
18
   EDWIGE RUDE-ANTOINE, FORCED MARRIAGES IN COUNCIL OF EUROPE MEMBER STATES 7 (2005).
19
   Id. at 17.
20
   Commonwealth, supra note 8, at 8.
21
   RUDE-ANTOINE, supra note 18, at 16.
22
   UDHR, supra note 8, at art. 16(2).


                                                         32
2020]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol: 5 :1


marriage.23 Commonly, marriage is considered as a legal union between a man and a
woman who are attached by an exclusive commitment.24 Nevertheless, the way of
understanding the concept of marriage in one society may not be the same in others. In
this regard, the legal definition and consequences of marriage differ from one country to
another.25 Today, a new model of marriage, which considers marriage as a relationship,
has been acknowledged by some academics.26 In an effort to create a universal definition
of marriage, it is highlighted that there is no need to categorize marriage as a legal
contract between a man and a woman.27 Hence, it is argued that defining marriage as
“[a]ny union between two or more people which, in a specific society is legally, culturally
and/or religiously sanctioned, which is binding, and which, within the particular context
of that society, establishes certain rights and obligations between these people and is
seen as marital or marital alike” seems appropriate in terms of dealing with any possible
case.28
           The second problem with the definition of forced marriage is the notion of
consent and its relationship with the issue of duress.29 In other words, girls are required
to give their competent and informed authorization willingly.30 Hence, a lack of consent
concerns not only those who do not give consent but also those who cannot legally
consent because they are underage, disabled, or incapable of giving informed consent.31
Consent is lacking where the spouse gives her/his consent due to duress,
misinformation, deception, fraud, or lies.32 On this basis, a marriage may be based on
different practices of duress, from external influences such as emotional pressure, to
more extreme cases, such as abduction or rape.33 In some cases, determining whether or
not the parties have made a voluntary statement is a complex task, except in cases where

23
   C.f. IRIS HAENEN, FORCE AND MARRIAGE: THE CRIMINALISATION OF FORCED MARRIAGE IN DUTCH, ENGLISH AND
   INTERNATIONAL CRIMINAL LAW 17 (2014).
24
   See, e.g., Sherif Girgis, Robert P. George and Ryan T. Anderson, What is Marriage?, 34 HARV. J.L. & PUB. POL’Y
   245, 252 (2011).
25
   See, e.g., Schalk and Kopf v. Austria, App. No. 30141/04, (2010) ECHR 1996, ¶ 62 (2010).
26
   See generally David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning Of Marriage, 38 S. TEX. L.
   REV. 1, 38 (1997); see also Milton C. Regan, Law, Marriage, and Intimate Commitment, 9 VA. J. SOC. POL’Y & L. l16
   (2001).
27
   It can be argued that the attitude against cohabitation has changed. According to a study conducted by the
   British Social Attitudes, 61% of participants stated that a woman with no children should have the same
   rights as a married woman, when her relationship ends, see ANNE BARLOW, SIMON DUNCAN, GRACE JAMES AND
   ALISON PARK, COHABITATION, MARRIAGE AND THE LAW: SOCIAL CHANGE IN THE 21ST CENTURY 81 (2005).
28
   HAENEN, supra note 23, at 18.
29
   See Susan Edwards, The Straw Woman’ at Law’s Precipice: An Unwilling Party, in PARTICIPATION IN CRIME: DOMESTIC
   AND COMPARATIVE PERSPECTIVES 70 (Alan Reed & Michael Bohlander eds., 2013).
30
   See Kopelman, supra note 7.
31
   Id.; ANGELA VIGIL, AMERICAN BAR ASSOCIATION COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE REPORT TO THE
   HOUSE OF DELEGATES (2014).
32
   See Kopelman, supra note 7.
33
   See Amrit Wilson, The Forced Marriage Debate and the British State, RACE & CLASS, July 2007 at 25, 32.


                                                        33
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


duress is in the form of physical violence.34 It is especially difficult to detect the nature
of a marriage agreement between a forced and/or arranged marriage (where the bride
and groom are pre-selected by their families) since considerable emotional pressure is
involved.35       In an arranged marriage, spouses give their full consent even though
emotional pressure is involved.36 However, in many cases, a woman knows that she
cannot decline, otherwise she would have to face the consequences.37 In addition to that,
after marriage, a spouse may realize that she/he may have been forced to marry at the
time of marriage.38
           As stated under Article 142 of the Turkish Civil Code, the officer of marriage asks
the bride and groom individually whether each individual wishes to “marry the other”; if
both answer in the affirmative, they are pronounced married by mutual consent.
Accordingly, despite the global tendency regarding marriage, it is defined as an
agreement between man and woman in the Turkish legal system.39 The basic problem
which arises in relation to the concept of marriage is where the spouses only conclude a
religious marriage that has no legal consequenceS in the current Turkish legal system.40
           There is no legal definition of a “forced marriage” in the Turkish Civil Code.41
The Code only accepts an action of annulment in case of duress.42 If the spouse is
coerced under duress that involves an immediate and serious danger towards her/his or
one of the relatives’ lives, health, honour or dignity, she/he can sue for annulment of the
marriage.43 In this regard, only the acts which violate the rights of a person such as life,
health, honour and dignity are considered as duress and constitute a reason for claiming
the annulment of the marriage.44 The spouse who gave her/his consent under duress
must bring a suit within six months after being subjected to duress, and five years after
34
   See Alexia Sabbe et. al., Forced Marriage: An Analysis of Legislation and Political Measures in Europe, 62 CRIME, LAW
   AND SOCIAL CHANGE 171, 173 (2014).
35
   See generally Geetanjali Gangoli & Khatidja Chantler, Protecting Victims of Forced Marriage: Is Age a Protective
   Factor?, 17 FEMINIST LEGAL STUD. 267, 269 (2009); see also Simmons & Burn, supra note 17, at 974.
36
   See Mahmood v. Mahmood, [1994] S.L.T. 599 (Scotland). (The Court annulled the marriage, but nevertheless
   Lord Prosser argues that “under pressure–and perhaps very considerable pressure—a party does indeed
   change his or her mind and consents to a marriage, with however ill a grace and however resentfully, then
   the marriage is in my opinion valid”).
37
   See Kalwant Bhopal, South Asian Women and Arranged Marriages in East London, in ETHNICITY, GENDER AND SOCIAL
   CHANGE 117, 121 (Rohit Barot & Harriet Bradley & Steve Fenton eds., 1999).
38
   See Gangoli & Chantler, supra note 35, at 269.
39
   See supra note 9; Evlendirme Yonetmeligi (Evlendirme Yönetmeliği) [The Regulation Regarding Marriage],
   art. 14 (Nov. 7, 1985) (Turk.).
40
   See Gotthard Jäschke, Imam-Ehe in der Türkei [Imam Marriage in Turkey], 4 DIE WELT DES ISLAMS 164, 170 (1955).
41
   Pinar Ilkkaracan, Law: Access to the Legal System: Turkey, in ENCYCLOPEDIA OF WOMEN AND ISLAMIC CULTURES:
   FAMILY, LAW AND POLITICS 383 (Suad Joseph & Afsaneh Najmabadi eds., 2005).
42
   Supra note 9, art. 151.
43
   Id.
44
   See Ayse Havutcu, Mukayeseli Hukuktaki Gelismeler Isiginda Turk Medeni Kanunu Acısından Zorla Evlenme
   Probleminin Degerlendirmesi [The Evaluation of the Problem of Forced Marriage in terms of Turkish Civil Code in the
   Light of Development in Comparative Law], 8 E-J. YASAR U. 1341, 1377 (2013).


                                                          34
2020]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol: 5 :1


the date of marriage in any case.45 Therefore, the annulment of marriage under duress
would be secured before a court i.e., family division of the court of first instance within
the period of limitation, and only the spouse who gave her/his consent under duress can
ask for the annulment of marriage. This provision requires critical analysis on two
grounds. The first one is regarding the legal understanding of the concept of duress. The
Turkish Civil Code defines acts by third parties which directly violate personal rights as
duress; but this definition excludes the physiological pressure of the families as well as
social pressure.46 The second critique targets the annulment claim. After five years from
the date of the marriage, the victim of duress can no longer ask for the annulment of the
marriage. Therefore, the victim of forced marriage could be subjected to duress during
the aforementioned five years in order to continue the marriage which might have
become intolerable for her/him.47 This is related to the annulment claim which should
not be limited over time, this only allows to continue a marriage which may have become
intolerable for the other party.



     1.2. LEGAL MODERNIZATION OF TURKEY: THE STORY OF WESTERNIZATION

Until 1923, Turkey was ruled by the Ottoman Empire and its legal system was based
primarily on Islamic law and the Hanafi legal school,48 which was the official doctrine in
the empire since the middle of the sixteenth century.49 Although the Ottoman Empire
was based on the Islamic law, the sultans were active lawmakers.                                  The sultans
concentrated their attention on criminal, tax and land law, issuing numerous decrees
(Kanunname) aimed at filling the gaps (while respecting Islamic law) of the legal system
of an empire which was composed of a multitude of culturally, religious and ethnically
diverse peoples.50          These rules were perceived, in Islamic terms, as                      part of the
“customary law” or “common law” of the community (Orfi Hukuk). The sultan’s decrees
did not concern, however, the establishment of rules in the field of private law, which
was instead based on the Millet system, based on the religious affiliation of the members
of the different populations of the empire rather than on a territorial basis. In other
words, the fundamental classification of private law was based on religion, on the one

45
   Supra note 9, art. 152.
46
   Havutcu, supra note 44, at 1377-1378.
47
   Id.
48
   Hanafi school was one of the four major Sunni legal schools of which composed of Hanbali, Hanafi, Maliki and
   Shafi’i., see CHRISTOPHER MELCHERT, THE FORMATION OF THE SUNNI SCHOOLS OF LAW: 9TH-10TH CENTURIES C.E. 156
   (1997); see also JUDITH E. TUCKER, WOMEN, FAMILY, AND GENDER IN ISLAMIC LAW 14 (2012).
49
   See Paul J. Magnarella, The Reception of Swiss Family Law in Turkey, 46 ANTHROPOLOGICAL Q. 100, 101 (1973); see
   also HALİL CİN & GüL AKYILMAZ, TUüRK HUKUK TARIHI [TURKISH LEGAL HISTORY] 90 (2011).
50
   See Carter Vaughn Findley, The Tanzimat, in TURKEY IN THE MODERN WORLD 9, 18 (2008).


                                                       35
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


hand, there was Islamic law that was applied only to Muslims and on the other, there was
the specific religious law that was applied to the non-Muslim population51 The Ottoman
legal system therefore provided that Islamic law was applied in private law disputes
among the Muslim population, while non-Muslims had their own religious and
customary law. There was also the aforementioned Orfi Hukuk that was set up by the
sultans in order to solve the current problems of the empire . Hence, the fundamental
classification of private law was generally based on religion, on one hand there was
Islamic law which was applied only to Muslims and on the other there was the specific
religious or customary law that was applied to the non-Muslim population of the
Empire.52
           At the end of the seventeenth century, the idea of being part of the Western
civilization gathered momentum in order to save the empire from collapse.53 Indeed, the
period of Tanzimat (reorganization)54 from 183955 to 187656 , the era of modernisation of
the empire,57 opened the way for the education of women and the questioning of a
repressive system against them.58


51
   See Esin Orücü, Turkey: Reconciling Traditional Society and Secular Demands, 26 J. FAM. L. 221, 236 (1987); see
   also Pinar Ilkkaracan, Customary: Turkey, in ENCYCLOPEDIA OF WOMEN AND ISLAMIC CULTURES: FAMILY, LAW AND
   POLITICS 426, 427 (Suad Joseph & Afsaneh Najmabadi eds., 2005); Alan Watson, The Evolution of Law: Continued,
   L. & HIST. REV. 537, 550 (1987); Arzu Oğuz, The Role of Comparative Law in the Development of Turkish Civil
   Law, 17 PACE INT’L L.REV. 373, 376 (2005); RODERIC H. DAVISON, REFORM IN THE OTTOMAN EMPIRE 1856-1876,
   at 12 (Princeton University Press, 1963) (The main community of non-Muslims were the Orthodox Greeks,
   Gregorian Armani and Jews).
52
   Id.
53
   ERGUN OZBUDUN, TURK ANAYASA HUKUKU [TURKISH CONSTITUTIONAL LAW] 25 (Yektin, 2010). In fact the treaty
   called Sened-i Ittifak (Charter of Alliance) signed in 1808 between the government and the representative of
   the local governing authorities (Ayans) which was considered the first constitutional phase of the Ottoman
   Empire and for the first time in the history of the Empire the power of the Sultan was limited. According
   to this treaty only officials of empire could interfere in the affairs of government and the grand vizier
   contributed to the administration and as a result he was responsible for his actions. However, this treaty
   had an interesting feature, because it was not recognized a mechanism to ensure its execution. See generally
   KEMAL GÖZLER, TÜRK ANAYASA HUKUKUNA GİRİŞ [INTRODUCTION TO TURKISH CONSTITUTIONAL LAW]
   10 (2013).
54
   The word of Tanzimat derives from an Arabic word “order” and means also “reform”, see DAVISON, supra note
   51, at 42; see also Findley, supra note 50.
55
   Sultan recognized the fundamental principles such as security of life, honor and property for the first time
   in the edict of Tanzimat. See BERNARD LEWIS, THE EMERGENCE OF MODERN TURKEY 107 (1968); see also GULNIHAL
   BOZKURT, BATI HUKUKUNUN TüRKIYE’DE BENIMSENMESI [THE ADOPTION OF WESTERN LAW IN TURKEY] 48 (1996);
   DAVISON, supra note 51, at 40; ILBER ORTAYLI, İMPARATORLUĞUN EN UZUN YüZYILI [THE LONGEST CENTURY OF THE
   EMPIRE] 99 (2006).
56
   See ERGUN OZBUDUN, THE CONSTITUTIONAL SYSTEM OF TURKEY: 1876 TO PRESENT 2 (Springer, 2011). (Even though
   the Tanzimat reforms had no effect on the powers of sultans, it leaded the way in the first Constitution of
   Ottoman Empire in 1876. The period of Tanzimat ended with the enactment of the Constitution).
57
   See Linda T. Darling, Islamic Empires, The Ottoman Empire and the Circle of Justice, in CONSTITUTIONAL POLITICS IN
   THE MIDDLE EAST, WITH SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN AND AFGHANISTAN 23 (Said Amir Arjomand
   ed., 2008); Findley, supra note 50, at 13.
58
   See Zuhal Yeşilyurt Gündüz, The Women’s Movement in Turkey: From Tanzimat Towards European Union
   Membership, 9 PERCEPTIONS 115, 115 (2004); see also Darling, supra note 57; Findley, supra note 50, at 13.


                                                         36
2020]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol: 5 :1


It is worth mentioning that the principles of Tanzimat had been interpreted in such a way
that the rules were applicable to the entire population of the Ottoman Empire, both
Muslim and non-Muslim.59 In addition, the Islahat Fermanı (reform edict), enacted in
1856, finally settled that the laws were equal for all without any distinction of religious
affiliation.60 In this context, a need arose to enact a series of reforms61 with a special
emphasis on contract law and commercial law, to fill-in the legislative gaps in a
progressively dynamic world influenced by the increasing trade relations with European
countries.62 Under this wave of reform, the Ottoman Criminal Code (Qanun al-jaza’
al-Humayuni), a translation of the 1810 French Code Pénal [C. PéN.] [Penal Code], came
into force in 1859.63 Nevertheless, the translation is a modified version since some
Islamic norms and customs were added to the Code. In addition, in later years, more
provisions were modelled on Islamic standards.64 As a part of this phase of the reforms, a
codification entitled “Mecelle”65 which regulated commercial law, law of civil procedure,
property law and contract law was completed.66 Nevertheless, Mecelle is not considered
as a civil code typical of western codifications of the nineteenth century, since the
matters regarding law related to individuals, family law and inheritance law were not
regulated by it.67 The text in question was also criticized for not reflecting the spirit of
its time and for having a strong Islamic imprint.68

59
   See BOZKURT, supra note 55, at 49; see also OZBUDUN, supra note 53, at 26.
60
   See DAVISON, supra note 51, at 55; see also BOZKURT, supra note 55, at 49; OZBUDUN, supra note 53, at 26; Findley,
   supra note 50, at 18; DarlinG, supra note 57; ERIK J. ZüRCHER, TURKEY: A MODERN HISTORY 51 (3rd ed. 2004).
61
   See Hifzi Veldet Velidedeoglu, Les Facteurs De Codification Dans L’Empire Ottoman Et Les Causes De La Réception
   Du Code Civil Suisse Par La Turquie Républicaine, ANNALES DE LA FACULTé DE DROIT D’INSTANBUL, Sept. 1961, at
   21, 24-25 (as a starting point such gaps were filled partly with the enactment of the Commercial Code in
   1850 which consisted of the first two chapters of the French Code and supplemented with appendices. In
   1881, moreover, taking as a model of the French Code de procédure civil [C.P.C.][Civil procedure code] of
   1807, the Code of Civil Procedure which replaced the decree of the procedure of commercial courts in 1860
   was enacted); see also BOZKURT, supra note 55, at 357; LEWIS, supra note 55, at 110; Paul J. Magnarella, East
   Meets West: The Reception of West European Law in the Ottoman Empire and the Modern Turkish Republic, 2 J. INT’L
   L. & PRAC. 281, 284 (1993) (arguing in order to apply the new European originated codes, mixed tribunals
   composed of Muslim and non-Muslim judges were constituted).
62
   For a deep analysis on relations with European countries we refer to, ORTAYLI, supra note 55, at 114. With
   the introduction of these reforms, the efficiency of both in the commercial field and administrative one
   increased; their goal was to change the social and cultural customs of the people, see Kurt Lipstein, The
   Reception of Western Law in Turkey, the Purpose and the Results of the Meeting of International Association of Legal
   Science Held in Istanbul in September, ANNALES DE LA FACULTé DE DROIT D’INSTANBUL, , at 225, 229 (1955).
63
   See Velidedeoglu, supra note 61, at 24; see also LEWIS, supra note 55, at 109; BOZKURT, supra note 55, at 344;
   ORTAYLI , supra note 55, at 179.
64
   See SULHİ DöNMEZER & SAHİR ERMAN, NAZARî VE TATBIKî CEZA HUKUKU [THEORETICAL AND PRACTICAL CRIMINAL
   LAW] 126 (1997).
65
   The full name of the codification is “Mecelle-i Ahkâm-ı Adliye”.
66
   The codification was approved between 1869 and 1876 and consisted of 16 books. See LEWIS, supra note 55, at
   123; Velidedeoglu, supra note 61, at 26; BOZKURT, supra note 55, at 159.
67
   In fact there was no need for such areas of law to regulate because they were governed by Islamic law for
   Muslims and their own religious law for non-Muslims, see BOZKURT, supra note 55, at 161-162.
68
   See LEWIS, supra note 55, at 123; Seval Yıldırım, Aftermath of a Revolution: A Case Study of Turkish Family Law, 17
   PACE INT’L L. REV. 347, 353 (2005).


                                                          37
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


The period from the foundation of the republic in 1923 to the adoption of the Western
civil codes in 1926, was revolutionary both legally and politically for the Republic of
Turkey.69 Indeed, this period is of particular importance given the fact thatthe caliphate,
the office of shaykh al-islam70 and the sharia courts were abolished in 1924.71 In the same
year secular courts were introduced.72 Thus, the old system was completely abandoned
and the new legal system was established by the reception of the western European
codes.73       In 1926, the incumbent government decided to fully adopt74 the Swiss
SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907,75 which revolutionised
the lives of Turkish women. Indeed, by the virtue of this code, polygamy was abolished,
marriage under the age of fifteen for women and seventeen for men was forbidden, and
legal equality of women with men as recognised.76 Nevertheless, this code has been
criticised for neglecting true gender equality in relation to family law.77 The enactment
of the new Turkish Civil Code in 2002, which established a new gender regime based on
equality of men and women in relation to marriage and divorce, is considered as an
important development for women’s rights in Turkey.78 Following the birth of the

69
   It is also claimed to be a very good example of revolutionary and radically reformist social engineering
   through laws, see Orücü, supra note 52, at 222.
70
   Giving consultancy in matter of legality of the matters, shaykh al-islam, chief mufti was at the second highest
   rank of governance after the caliph himself, see Wael B. Hallaq, Juristic Authority vs. State Power: The Legal
   Crises of Modern Islam, 19 J.L. RELIGION 243, 253 (2003-04).
71
   See Yildirim, supra note 68, at 356; JEAN-PAUL GARNİER, OSMANLI İMPARATORLUĞU’NUN SONU: II. ABDüLHAMIṪ ’TEN
   MUSTAFA KEMAL ’E [DISSOLUTION OF THE OTTOMAN EMPIRE] 312 (2007). However Islam was officially the
   religion of the Turkish state until 1928 and the principle of secularism was recognized and inserted in the
   Constitution in 1937 for the first time. See GÖZLER, supra note 53, at 29. In order to constitute a state control
   mechanism, the authority of the Religious Affairs Directorate was established which licenses preachers,
   supervises the content of their sermons, appoints all the muftis in the provinces and if asked, gives an
   occasional opinion on religious law, see Tolga Köker, The Establishment of Kemalist Secularism in Turkey, 2
   MIDDLE E.L. GOVERNANCE 17, 32 (2010).
72
   The Constitution of 1924 granted to the independent courts the exercise of judicial authority in the name of
   nation, see KökeR, supra note 71, at 30.
73
   See generally Gülnihal Bozkurt, The Reception of Western European Law in Turkey (From the Tanzimat to the Turkish
   Republic, 1839-1939), 75 DER ISLAM 283 (1998).
74
   After the foundation of the republic, the theocratic feature of Mecelle was not adequate with the new
   revolutionary mentality. The committees were formed in order to prepare a new Civil Code, but they failed
   to free from the mindset of Islamic law, Velidedeoglu, supra note 61, at 33.
75
   Besides the Civil Code, a range of Western codes was adopted in this period. In 1926 both the Code
   of Obligations of 1911 and the Code of Civil Procedure and the Bankruptcy and Enforcement Code were
   adopted from Switzerland yet, the Commercial Code and the Code of Criminal Procedure were adopted from
   Germany.
76
   The Civil Code of 1926 also outlawed the practice according to which husbands could end their marriages by
   repudiation. See ZEHRA F. KABASAKAL ARAT, Women, in THE ROUTLEDGE HANDBOOK OF MODERN TURKEY 259, 260
   (Metin Heper & Sabri Sayan eds., 2012). The Code granted women the right to choose their spouses, initiate
   divorce, and maintain certain maternal rights after divorce. Orücü, supra note 52, at 224; Ilkkaracan, supra
   note 52, at 426.
77
   According to the Turkish Civil Code of 1926, the husband was designated as the head of the household and
   the representative of the family; therefore, the husband was solely in charge of the administration of the
   matrimonial property, see, Yildirim, supra note 68, at 359; see also Cengiz Koçhisarlıoğlu, Aile Hukukunda Eşlerin
   Eşitliği [Equality of Spouses in Family Law], 40 ANKARA ÜNIVERSITESI HUKUK FAKüLTESI DERGISI 251, 254 (1988).


                                                         38
2020]                                UNIVERSITY OF BOLOGNA LAW REVIEW                                            [Vol: 5 :1


Republic, the first Turkish Criminal Code of 1926, a translation of the 1889 Italian CODICE
PENALE [C.P.] [CRIMINAL CODE] Jun. 30, 1889, was adopted and was in force until 2005.79
Despite the protective nature of the Code in terms of basic rights, certain provisions
were against gender equality.80 The new Turkish Criminal Code of 2005 was praised by
scholars and lawyers for its innovative perspective in terms of women’s rights.81 Article
3 of the Code succinctly emphasized that, in the implementation of the Criminal Code,
no one shall receive any privileges and there shall be no discrimination against any
individual on the basis of their race, language, religion, sect, nationality, colour, gender,
political (or other) ideas and thought, philosophical beliefs, ethnic and social
background, birth, economic and other social positions.                            82   In fact, the male dominant
character of the former Turkish Criminal Code was abrogated; however, the
discriminatory practice of courts stands as an undeniable fact. It was rightly argued that
judges and state officials act under the effect of what is customary within the Turkish
society.83



     1.3. TURKEY’S OBLIGATIONS EMERGED FROM INTERNATIONAL LAW BASED
     ON ELIMINATION OF FORCED MARRIAGES OF CHILDREN

Under international law, a number of instruments have been introduced in order to
criminalize forced marriage.                    One of the core international instruments, which
demonstrates the European approach against forced marriage, is the Council of Europe
Convention on Preventing and Combating Violence against Women and Domestic



78
   Ilkkaracan, supra note 41, at 383; GüL ALDIKAçTI MARSHALL, SHAPING GENDER POLICY IN TURKEY: GRASSROOTS
   WOMEN ACTIVISTS, THE EUROPEAN UNION, AND THE TURKISH STATE 93 (2014).
79
   The reason behind the adoption of such a code is that Zanardelli Code was considered the most liberal example
   of its time, see generally ZEKI HAFIZOĞULLARI & MUHARREM ÖZEN, TURK CEZA HUKUKU GENEL HUKÜMLER [TURKISH
   CRIMINAL LAW GENERAL PART] (2015).
80
   See Gülriz Uygur & Türkan Yalçın Sancar, Law, Women’s Subordination and Changing Face of the Turkish Legal
   System in the Example of Article 434 of the Turkish Criminal Code, E. EUR. COMMUNITY L. J., at 30, 34 (2005) (for
   instance, defloration by promise of marriage was regulated under a special criminal provision based on
   customs that attached importance to the women’s virginity).
81
   See Türkan Yalçin Sancar, Türk Ceza Hukukunda Kadin [WOMAN IN TURKISH CRIMINAL LAW] 191 (2013).
82
   Supra note 10, art. 3.
83
   Uygur & Sancar, supra note 80, at 35. Similarly, the European Court of Human Rights observed that “ the
   alleged discrimination at issue was not based on the legislation per se but rather resulted from the general attitude of the
   local authorities, such as the manner in which the women were treated at police stations when they reported domestic
   violence and judicial passivity in providing effective protection to victims“. Opuz v. Turkey, App. No. 33401/02,
   (2009) Eur. Ct. H.R. 870, ¶ 192 (2009). For example, in some cases, the Turkish Court of Cassation decided
   on the reduction of the sentence of the accused for committing murder against his partner by reason of
   unjust provocation. The Court held that there was an unjust provocation against the husband by the wife
   who declined drinking the fruit juice offered by him. See Yargitay [YARG] [TURKISH COURT OF CASSATION]
   March 31, 2009, 9687/1691.


                                                              39
          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


Violence (Istanbul Convention)84 ratified by Turkey on March 14, 2012.85 Article 37 of the
Convention places State parties under an obligation to take necessary legislative
measures to criminalize forced marriage.86
          In addition, Turkey has ratified various other international human rights
instruments, some of which pertaining to women’s human rights. On 2 December, 1985,
Turkey became a state party to the CEDAW87 by means of pertinacious demand of the
feminist movement in Turkey.88 Article 16 of the CEDAW places state parties under an
obligation to take appropriate measures to ensure that women have the right to freely
choose a spouse and to enter into a marriage only with their free and full consent. In the
same vein, the ECHR, ratified by Turkey in 1954,89 ensures some of the basic rights that
may be violated in a forced marriage. It also puts the responsibility firmly on the public
officials in terms of preventing such violations.                 State parties are under a specific
obligation to secure the basic rights which are violated by a forced marriage; Article 3 of
the ECHR guarantees prohibition of torture, and Article 8 which concerns the right to
respect for private and family life could be applicable in such cases.90
          Turkey has also ratified the UNCRC in 1995. Unlike the UNCRC, which does not
contain any specific article regarding the marriage of child, the CEDAW, in Article 16(2)
states that “[t]he betrothal and the marriage of a child shall have no legal effect” and
requires the member states “[t]o specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory”.91 Nonetheless, the UNCRC
significantly requires member states to abolish “[t]raditional practices prejudicial to the
84
   Council of Europe, Convention on Preventing and Combating Violence against Women and Domestic
   Violence, Aug. 1, 2014, C.E.T.S. 210.
85
   Approved by the Parliament on Nov. 24, 2011, published in the Official Gazette on March 8, 2012.
86
   Council of Europe, supra note 84. Unfortunately, Turkey is not a state party to the Convention on Consent to
   Marriage, Minimum Age for Marriage and Registration of Marriages. The Convention is a vital tool in terms
   of fighting against child and forced marriages. According to the Convention, No marriage shall be legally
   entered into without the full and free consent of both parties, and all state parties must set a minimum age
   for marriage.
87
   United Nations Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18,
   1979, 1249 U.N.T.S. 13. CEDAW has been described as a powerful international human rights instrument
   that reflects a global determination on the part of the international community to achieve gender equality
   through advancing women’s rights. For an overall view of CEDAW see generally ANDREW BYRNES ET AL.,
   WOMEN’S HUMAN RIGHTS: CEDAW IN INTERNATIONAL, REGIONAL AND NATIONAL LAW (Anne Hellum & Henriette
   Sinding Aasen eds., 2013); see also U.N. Committee on the Elimination of Discrimination Against Women,
   General Recommendation on Article 16 of the Convention on the Elimination of All Forms of Discrimination
   against Women (Economic Consequences of Marriage, Family Relations and their Dissolution), U.N. Doc.
   CEDAW/C/GC/29 (Oct. 30, 2013).
88
   See Gündü Z, supra note 58 at 119.
89
   As a founding member of the Council of Europe, Turkey ratified the ECHR with Law No. 6366, published in
   the Official Gazette No. 1567 on March 10, 1954.
90
   See Shazia Choudhry, Forced Marriage: the European Convention on Human Rights and the Human Rights Act 1998,
   in FORCED MARRIAGE: FORCED MARRIAGE: INTRODUCING A SOCIAL JUSTICE AND HUMAN RIGHTS PERSPECTIVES 67, 72
   (Aisha K. Gill & Sundari Anitha eds., 2011).
91
   Supra note 12, art. 16(2).


                                                      40
2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol: 5 :1


health of children” as well as to protect children from “all forms of sexual exploitation
and sexual abuse”. Furthermore, the UNCRC Committee has persistently scrutinised
child marriage in its Concluding Observations to member states which have ratified the
UNCRC.92 The CEDAW and the UNCRC Committees have recommended state parties to
“[r]aise the minimum age of marriage for both women and men” and “[n]ot to allow
exceptions to minimum age of marriage even with consent”. In this regard the marriage
of minors cannot be justified with their consent. Another recommendation of the
Committees is to “[p]rovide for sanctions against perpetrators of early marriage and
ensure the investigation of cases as well as the prosecution and punishment of
perpetrators”.




      2. TURKEY’S CHALLENGES OF MARRIAGE LAW, RELIGIOUS, SOCIO-
      CULTURAL AND LEGAL PRACTICES ON MARRIAGES OF CHILDREN

As stated above, prior to the republic, Turkey was ruled according to Ottoman law, which
was based on Islamic law until the legal revolutions of the Turkish Republic. Yet, family
law was the core of the Islamic law, which governed the lives of the Muslim population
of the empire over centuries.93 It is remarkable that Islamic family law was replaced by
family law based on the Swiss SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10,
1907, in a country which had almost 98% of the Muslim population in that time.94 Also
today, the majority of the society in modern Turkey defines itself as Muslim.95 Therefore,
being part of the history of the country, Islamic law has also inevitably a large application
in people’s daily life at present, and the act of marriage is one of its manifestations.
          According to Islamic law, marriage is a legally binding contract that can only be
concluded between a man and a woman96 who had the capacity of judgement and had
reached puberty.97 Different schools of Islam established minimum ages of marriage
based on gender. According to Hanafi school (official legal doctrine of Ottoman Empire)
92
   See generally UN CEDAW and CRC Recommendations on Minimum Age of Marriage Laws Around the World,
   EQUALITY NOW (2013), https://www.scribd.com/document/325592767/UN-Committee-Recommendations-
   on-Minimum-Age-of-Marriage-Laws (last visited Oct. 18, 2017).
93
   See Magnarella, supra note 61, at 285.
94
   Id.
95
   According to a study in 2017, 86% of people calls themselves Muslims, and 92% of population believes the
   existence of Allahs see MAK DANISMANLIK, MEHMET ALI KULAT, TURKIYE’DE TOPLUMUN DINE VE DINI DEGERLERE
   BAKISI [TURKISH PUBLIC OPINION TOWARD RELIGION AND RELIGIOUS VALUES] 4 (2017).
96
   See TUCKER, supra note 48, at 41; see also Magnarella, textit supra note 61, at 294.
97
   See CIN & AKILMAZ, supra note 49, at 378; see also M. AKIF AYDIN, OSMANLI AILE HUKUKU [OTTOMAN FAMILY LAW]
   52 (2017).


                                                     41
           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 the minimum age of marriage was nine for girls and was twelve for boys.98 Under these
 age groups nobody was assumed to have reached puberty, therefore, could not marry.99
            The necessity of consent of women who fulfilled the requirements for marriage
 was also discussed among Hanafi scholars. According to some scholars of the Hanafi sect,
 women who reached puberty and had the capacity of judgement could give their consent
 for their own marriage without any need for the consent of their legal guardians.100
 Nevertheless, according to the others, the women who had the capacity of judgement
 and had reached puberty could not get married without the consent of their legal
 guardians.101 The first interpretation was applied predominantly between 941 and 1544
 in the Ottoman territories.102 In 1544, the Ottoman Sultan (as Lord of the Caliphate)
 adopted the second reading which was applied in the Ottoman territories until the end of
 the Empire.103 However, the application differed depending on whether the women had
 previously been married or not.                 Even though Hanafi’s school did not let the legal
 guardians of the bride who reached puberty conclude a marriage agreement without her
 consent104 , the same religious school would let the legal guardians of the children, boys
 or girls, who did not reach puberty conclude a marriage agreement without consulting
 them.105 Yet, the legal guardians referred to above were a very large category of the
 family members such as fathers, grandfathers, brothers and their sons, paternal uncles
 and their sons.106
            At the time, the minimum age for marriage, set at nine for girls and twelve for
 boys, was regulated under the codification regarding family was the law entitled Hukuk-i
 Aile Kararnamesi (the Ottoman Family Law Ordinance) as part of the codification movement
 of the Tanzimat period. It entered into force in 1917 and remained in force for twenty




98
    See CIN & AKILMAZ, supra note 49, at 378.
99
    Id.
100
    See AYDIN, supra note 97, at 53.
101
    Id.
102
    Id. at 54.
103
    See TUCKER, supra note 48, at 60; see also AYDIN, supra note 97, at 55.
104
    CIN & AKILMAZ, supra note 49, at 381.
105
    Nevertheless if the marriage concluded by the legal guardians except father and grandfather, the minors
    (girls or boys) could request the annulment of marriage from the court when they reached the puberty,
    called khiyar al-bulug- option of puberty. See Magnarella, supra note 49, at 43; CIN & AKILMAZ, supra note 49, at
    382. However the application differed on the basis of gender, more clearly the men could ask the annulment
    anytime during their life but the women should declare their intention of annulment of the marriage as
    soon as they reached the puberty; otherwise they could never request the annulment of the marriage from
    the court. Furthermore according to imperial sharia court records, the number of women who exercised
    the right to request the annulment of marriage after reaching the puberty is much less than the number of
    men. CIN & AKILMAZ, supra note 49, at 383.
106
    CIN & AKILMAZ, supra note 49, at 382.


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 2020]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol: 5 :1


 months in the Ottoman Empire.107 Accordingly, it was an innovation for Ottoman family
 law that the aforementioned law banned concluding a marriage agreement under these
 ages by legal guardians. 108
           The fundamental sources of Islamic law109 stated that a marriage contract should
 be concluded through the participation of the parties and witnesses. Nonetheless no
 requirement was stated regarding the participation of legal officers or religious
 figures.110      However, as an administrative custom, in many Ottoman cities it was
 customary to register marriages in the court and this practice was strengthened by the
 decree of the Sultan in the sixteenth century, which necessitated the registration of all
 marriages.111 However, in the successive centuries the practice varied in different parts
 of the Empire.         For example, in Rumelia, the local imam (religious representative)
 generally concluded the marriage without recourse to the court.112 Yet, imams could not
 conclude the marriage without an authorization of marriage, which was given by the
 court upon a request by the prospective spouses.113 After the abolition of the Sharia
 courts in 1924 and prior to the enactment of the Turkish Civil Code of 1926, the court of
 peace was appointed to grant authorization to imams to conclude a religious marriage
 ceremony.114
           In the contemporary Turkish legal system, marriage is defined as an agreement
 concluded upon mutual and verbal declaration of wills of the prospective spouses
 (consensus facit nuptias).115 Any other kind of union (de facto unions) has not been legally
 recognised in the Turkish legal system, thus has no legal effects.116 After the legal
 reform of 1926, the civil marriage ceremony became compulsory and the religious
 marriage ceremony lost its legal effectiveness.117 Thus, in order to conclude a marriage
 agreement, the prospective spouses are required to declare their own intentions in
107
    Id. at 370. It must be underlined that Hukuk-i Aile Kararnamesi was the first codification regarding family law
    in Islamic countries which is still in force in Lebanon and remained in force in Syria until 1953, in Jordan
    until 1951 for Sunni populations see AYDIN, supra note 97, at 53.
108
    AYDIN, supra note 97, at 195 (It was written on the preamble of this codification that the marriages of minors
    were forbidden because of creating a lot of problems in family life).
109
    The most important source is Qur’an and the second important source is sunna, i.e. the practises and the
    sayings of the Prophet Muhammed, see TUCKER, supra note 48, at 12.
110
    AYDIN, supra note 97, at 61; Magnarella, supra note 61, at 294.
111
    TUCKER, supra note 48, at 60.
112
    Most of the marriages were registered in Jerusalem but the records of marriages were varied in Syria and
    Palestines see AYDIN, supra note 97, at 65; TUCKER, supra note 48, at 60.
113
    AYDIN, supra note 97, at 67; Jäschke, supra note 40, at 170.
114
    Jäschke, supra note 40, at 176.
115
    Supra note 9, art. 142.
116
    Therefore the couples did not have rights and obligations in relation to property, inheritance and
    maintenance payments following a separation. Turkey does not allow same-sex couples to get married or
    register their partnership in any way.
117
    Magnarella, supra note 61, at 103; Orücü, supra note 52, at 225; Tugrul Ansay, Family Law, in INTRODUCTION TO
    TURKISH LAW 111, 116 (Tugrul Ansay & Don Wallace Jr. eds., 2007).


                                                        43
           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 presence of two witnesses and the officer of marriage.118 The officer of marriage is the
 mayor or the officer appointed by the mayor,119 not the religious representative
 (imam).120       Consequently, the ceremony, which is performed by an imam, is not
 recognised by the civil law and has only religious significance.121 Even though the
 Turkish Civil Code does not recognise the religious marriage as a legal one, Islamic
 marriage is still performed both alongside a legal marriage and separately from a civil
 marriage.122 While fundamental Islamic sources and the practice of the Ottoman Empire
 illustrated that the participation of a religious representative was not compulsory in
 order to conclude a marriage in Islamic law, it became a social practice in Turkey which
 is still a matter of debate within contemporary society.123 In fact, a draft bill recently
 passed by the Grand National Assembly (Turkish parliament) to grant permission to
 “muftis” (who are religious civil servants within the body of Turkey’s Directorate of
 Religious Affairs) in order to conclude a civil marriage124 divided Turkish society into
 two blocks: religious conservatives in favour of the bill and the secular population
 against it.125       In the Turkish legal system, the capacity to marry requires certain


118
    Supra note 9, art. 142.
119
    However also the Minister of Interior shall appoint officers among foreign representatives of Turkey. The
    Regulation Regarding Marriage, supra note 39.
120
    Jäschke, supra note 40, at 180.
121
    Id.; 3 MUSTAFA ALPER GüMüş, MUSTAFA DURAL & TUFAN ÖĞüZ, TüRK ÖZEL HUKUKU: AILE HUKUKU [3 TURKISH
    PRIVATE LAW: FAMILY LAW] 74 (2010) (Turk.).
122
    According to the statistics of 2012 of Turkish Statistical Institute, 93,7% of couples concluded both
    civil and religious marriage, 3,3% of couples concluded only civil marriage and 3% of couples
    concluded only religious marriage. İstatistiklerle Aile [Statistic on Family], TURKISH STATISTICAL INSTITUTE
    http://www.tuik.gov.tr/PreHaberBultenleri.do?id=13662 (last visited Oct. 2, 2017).
123
    Orücü, supra note 52, at 226; HALIL CIN, İSLÂM VE OSMANLI HUKUKUNDA EVLENME [MARRIAGE IN ISLAMIC AND
    OTTOMAN LAW] 313 (1988). In the survey which conducted in the 1970s of Turkey showed that the religious
    marriage ceremony performed by imam with the participation of two male witnesses, and two male
    representatives for the spouses. The ceremony is realizing as follows:
                After the imam had read passages from the Quran, he turned to the bride’s
                representative and said, “In the name of Allah and in accordance with the exalted
                traditions of the Prophet, you have been named representative of so and so’s
                daughter.” The imam then asked him three times: “By Allah’s command, did you
                give this girl?” The representative responded three times: “By the power of my
                office, I gave her.” The imam then turned to the groom’s representative and asked:
                “By Allah’s command, did you take this girl?” He, too, responded affirmatively three
                times. The imam then solemnly said, “Amen,” and together those present recited the
                Fatiha-the Quran’s opening chapter].
    See Magnarella, supra note 61, at 294.
124
    The bill passed by the Turkish Parliament on Oct. 18, 2017. See, Marriage Authority Passed to Mufti of Parliament,
    TURKEY TELEGRAPH (Oct. 18, 2017), http://www.turkeytelegraph.com/breaking/marriage-authority-passed-
    to-mufti-of-parliament-h13580.html.
125
    See Mahmut Bozarslan, Bill Allowing Turkish Muftis To Perform Civil Marriages Stokes Concern Read More,
    AL-MONITOR (Aug. 9, 2017), https://www.al-monitor.com/pulse/originals/2017/08/turkeys-muftis-to-
    conduct-marriages.html; Turkish Parliament Passes Law Allowing Muftis To Register Civil Marriages, DAILY SABAH
    TURKEY (Oct. 18, 2017), https://www.dailysabah.com/turkey/2017/10/18/turkish-parliament-passes-law-
    allowing-muftis-to-register-civil-marriages.


                                                          44
 2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol: 5 :1


 qualifications126 such as majority and capacity of judgement. A person, who has the
 capacity to choose and has reached the age of marriage i.e. eighteen years old, can marry
 without any consent or court approval.127 It is worth noting that pursuant to the Turkish
 Civil Code of 1926, the minimum age for marriage differed on the basis of gender. More
 clearly, unless the woman had reached fifteen years of age and the man seventeen years
 old, the prospective spouse could not marry upon consent of her/his guardian.128 In
 such circumstances, the guardian could not declare the intention of marriage, only the
 prospective spouse could do so, but the guardian could only have declared her/his
 consent for the marriage.129 It is only in exceptional circumstances that the woman who
 had reached fourteen years of age and the man who had reached fifteen years old could
 get married upon a court’s approval.130
           The Turkish Civil Code of 2002, however, adopted a new perspective of gender
 equality and changed the minimum age for marriage. In order to be able to marry, the
 future spouses must have reached eighteen years of age, i.e. the age of consent. Hence,
 the spouses could only marry when they had reached seventeen years of age upon
 consent of her/his guardian.131 Furthermore, the court could allow a “[m]arriage of a
 person (both men and women) of the age of 16 in case of exceptional circumstances”.132
 According to Article 11 (2) of the Turkish Civil Code, a person is then recognised as an
 adult upon marriage, consequently a person under the age of 18 receives the same rights
 and responsibilities as an adult. There is no specific definition regarding “exceptional
 circumstances” in the Turkish Civil Code of 2002. Hence, the Civil Code grants wide
 discretion to judges.133 The Turkish Court of Cassation, in a recent decision in 2015,
 reversed the judgement which allowed a marriage involving a sixteen year old girl,
 affirming that living together as husband and wife did not constitute an exceptional
 circumstance.134 It is regrettable to find that the Turkish Court of Cassation approved
 marriages - thus evaluated positively the existence of exceptional circumstances - when
 the girl was under the age of seventeen, and not the boy.135 However, sadly, in most

126
    Supra note 9, art. 124-125.
127
    GüMüş & DURAL & ÖĞüz, supra note 121, at 51.
128
    See Turk Medeni ̇ Kanunu (1926 tarihli Türk Medeni Kanunu) [ETMK] [Turkish Civil Code], art. 88(1), (1926)
    (Turk.).
129
    GüMüş & DURAL & ÖĞüz , supra note 121, at 52-53.
130
    Supra note 128, art. 88(2).
131
    Supra note 9, art. 124(1).
132
    Id.
133
    See, e.g., TURGUT AKINTüRK & DERYA ATEş KARAMAN, TüRK MEDENI HUKUKU: AILE HUKUKU [TURKISH CIVIL LAW,
    FAMILY LAW] 69 (2012).
134
    Yargitay [YARG] [Turkish Court Of Cassation] Second Chamber of Law Division, May 6, 2015, 2015/3626 E.,
    2015/9331 K. (Turk.).
135
    Id.; see Yargitay [YARG] [Turkish Court Of Cassation] Second Chamber of Law Division, March 21, 2013,
    2012/7078 E., 2015/7749 K. (Turk.).


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           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 cases, the Court reversed the judgement due to the fact that the girls concerned did not
 even reach the age of sixteen, which is required for application for judicial approval.136
 These cases illustrate the fact that unfortunately the girls under the age of sixteen were
 already married with a religious marriage ceremony, and thereafter their legal guardians
 sought the judge’s approval for a civil marriage.
           Moreover, in Swiss law, the age of consent is eighteen137 in contrast to the
 Turkish law. The prospective spouses must have reached eighteen years of age in order
 to get married .138 Yet it is worth noting that until 1996, the Swiss SCHWEIZERISCHES
 ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907, used to allow marriage under the age of
 eighteen based on exceptional circumstances.139                       Upon the revision of the Swiss
 SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907, which entered into
 force on January 1, 1996, both the provisions which allowed marriage under the age of
 eighteen upon a court decision pursuant to exceptional circumstances and the provision
 which recognised as of age the person who got married under the age of 18 were
 abrogated.140




       3. SOCIO-CULTURAL AND ECONOMIC DETERMINANTS OF FORCED
       MARRIAGES OF CHILDREN IN TURKEY

 The majority of child marriages in Turkey take place as a result of cultural and social
 norms. In many cases, especially in the eastern part of Turkey, girls have no choice but
 to marry the man chosen for them by their parents because of the societal pressure, even
 though in certain cases they are consulted for their consent.141 In order to maintain
 family reputation, a girl has to get married before having the opportunity for


136
    Supra note 135; see Yargitay [YARG] [Turkish Court Of Cassation] Second Chamber of Law Division, May 3,
    2011, 2011/4235 E., 2011/7649 K. (Turk.); Yargitay [YARG] [Turkish Court Of Cassation] Second Chamber
    of Law Division, March 30, 2011, 2010/3710 E., 2011/5584 K. (Turk.); Yargitay [YARG] [Turkish Court Of
    Cassation] Second Chamber of Law Division, June 7, 2010, 2009/9099 E., 2010/11210 K. (Turk.); Yargitay
    [YARG] [Turkish Court Of Cassation] Second Chamber of Law Division, Nov. 8, 2010, 2009/16479 E.,
    2010/18720 K. (Turk.); Yargitay [YARG] [Turkish Court Of Cassation] Second Chamber of Law Division, Apr.
    29, 2010, 2009/4262 E., 2010/8639 K. (Turk.).
137
    See SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [CIVIL CODE], Dec. 10, 1907, SR 210, RS 210, art. 14 (Switz.)
138
    Id. art. 94.
139
    Id. art. 94(2).
140
    JEAN-CHRISTOPHE A MARCA, PASCAL PICHONNAZ, BéNéDICT FOëX & OTHERS, CODE CIVIL I: ART. 1-359 [C.C.],
    COMMENTAIRE (COMMENTAIRE ROMAND) [CIVIL CODE I: ART. 1-359 [C.C.], COMMENTARY] Art. 94, N. 15 (2010)
    (Fr.).
141
    See Pinar Ilkkaracan, Exploring the Context of Women’s Sexuality in Eastern Turkey, REPROD. HEALTH MATTERS, Nov.
    1998, at 66, 70.


                                                         46
 2020]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol: 5 :1


 inappropriate romantic affairs, and hence, be swayed by sexual feelings.142 According to
 this, girls are considered marriageable after experiencing menarche, as their virginity is
 a matter of life and death.143 The main reason is that premarital sexual intercourse is a
 taboo in respect of social norms. Hence, an unmarried woman is potentially placing her
 family honour in danger since an ingenuous woman could put her decency in danger by
 making mistakes.144
            Cultural phenomena could emerge in different fashions, although most of them
 are very rare nowadays. Endogamy is a common practice among Turkish society; official
 statistics from 2011 indicate that 21,3% of all marriages in Turkey are consanguineous.145
 Within consanguineous marriages, the marriage between cousins146 is the most common
 type.147 The main factor is that a marriage between relatives is considered to be more
 long-lasting since families share the same values.148 The economic considerations are
 also directly related to this tradition. The reason being that the bride’s family would not
 demand a high dowry from the groom because of the blood-relationship. In addition to
 cousin marriages, statistics indicate that 0,3% of marriages were berdel, a custom based
 on the exchange of brides by two consenting families instead of paying a dowry.149 By
 the same token, in terms of economic effects, this is an option for poor families, where
 affording a dowry is not an option.
            The issue of forced marriage of girls in Turkey also stems largely from economic
 factors. A survey conducted by the Ministry of Family and Social Policies indicates that
 15,6% of marriage agreements in Turkey are reached on the ground of dowry (başlık
 parası).150 The figures increase up to 43% in rural areas, particularly in the eastern part of
 the Country.151 According to the custom of dowry, a certain amount of money is paid to
 the bride’s family, mostly her father, by the groom’s family for the consummation of

142
    See Meliksah Ertem, Gunay Saka, Ali Ceylan, Vasfiye Deger & Sema Ciftci, The Factors Associated with Adolescent
    Marriages and Outcomes of Adolescent Pregnancies in Mardin Turkey, 39 J. COMP. FAM. STUD. 229, 237 (2008).
143
    See Meliksah Ertem & Tahire Kocturk, Opinions on Early-age Marriage and Marriage Customs among Kurdish-
    speaking Women in Southeast Turkey, 34 J. FAM. PLAN. AND REPROD. HEALTH CARE 147, 149-51 (2008) (the
    importance of virginity constitute an important part of cultural rituals, such as displaying the bloodied
    sheets of the marriage bed to inlaws to prove the worthiness of the wife). See Aysan Sever & Gokcecicek
    Yurdakul, Culture of Honor, Culture of Change: A Feminist Analysis of Honor Killings in Turkey, 7 VIOLENCE AGAINST
    WOMEN 964, 975 (2001).
144
    See, e.g., Ertem & Kocturk, supra note 143, at 149.
145
    TURKIYE CUMHURIYETI AILE VE SOSYAL POLITIKALAR BAKANLIGI, supra note 11, at 132.
146
    According to article 129 of the Turkish Civil Code (2002), “[m]arriage between lineal relatives and between siblings
    or halfsiblings, whether related to each other by parentage or adoption, between aunts and nephews, between uncles
    and nieces is prohibited”.
147
    Ertem & Saka & Ceylan & Deger & Ciftci, supra note 142, at 235.
148
    See, e.g., Ertem & Kocturk , supra note 143, at 150.
149
    Ertem & Saka & Ceylan & Deger & Ciftci , supra note 142, at 235.
150
    Id. at 238.
151
    Id.


                                                           47
           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 marriage.         Under this perverse understanding, girls are merely considered as
 commodities. The economic dimension of forced marriage is that dishonesty on a
 woman’s part induces refund of the dowry as she is bound by the agreement.152 Another
 issue is that the payment of the dowry by the husband shapes his attitude towards the
 bride on the proviso that the control of sexuality and fertility are granted to him by
 means of the agreement.153 The phenomenon of dowry leads to forced marriages, mostly
 in the form of child brides. The dowry increases the risk of marrying a child bride to an
 older man.154 In Turkey, 72% of such marriages are conducted without the consent of the
 girl concerned and 45,7% of the girls in reality are married off in exchange for money.155
 Lastly, the economic considerations may trigger child marriages since pecunious
 families force their children (generally cousins) to marry as soon as possible in an effort
 to keep the wealth within the family.156




       4. SUGGESTION: REARRANGEMENT OF LEGAL REMEDIES AGAINST
       FORCED MARRIAGE OF CHILDREN

 The question as to how the legal system must react to forced marriages has been
 discussed and scrutinized among practitioners and academics for a long time.157 In
 terms of dealing with forced marriages, some maintain that criminal prosecutions have
 to be utilized, while opponents argue that protection of women is best secured through
 the civil law mechanism. Putting separate examples as in the case of the United Kingdom
 (UK) and many other European countries which have adopted special provisions on
 criminalizing forced marriage such as Germany,158 Switzerland,159 Austria160 and
152
    See Sever & Yurdakul, supra note 143, at 989.
153
    Supra note 139, at 69.
154
    See generally Anita Raj, When The Mother Is a Child: The Impact of Child Marriage on the Health And Human Rights
    Abuse, 95 ARCHIVES OF DISEASE IN CHILDHOOD 931 (2010).
155
    HAFIZOĞULLARI & ÖZEN, supra note 79, at 242.
156
     See Ertem & Kocturk, supra note 143, at 151.
157
    See generally Teertha Gupta & Khatun Sapnar, The Law, the Courts and Their Effectiveness, in FORCED MARRIAGE:
    INTRODUCING A SOCIAL JUSTICE AND HUMAN RIGHTS PERSPECTIVES 158 (Aisha K. Gill & Sundari Anitha eds.,
    2011); see Brigitte Clark & Claudina Richards, The Prevention and Prohibition of Forced Marriages – A Comparative
    Approach, 57 INT’L COMP. L. Q. 501 (2008); see Yener Ünver, Kinderbräute in der Türkei [Children brides in Turkey],
    in STRAFRECHTLICHER REFORMBEDARF: MATERIALIEN EINES DEUTSCH-JAPANISCH-POLNISCH-TüRKISCHEN TAGUNG IM
    JAHRE 2015 IN RZESZóW UND KRAKóW (POLEN) [CRIMINAL LAW NEEDS REFORM: MATERIALS FROM A GERMAN-
    JAPANESE-POLISH-TURKISH CONFERENCE IN 2015 IN RZESZóW AND KRAKóW] 159 (2016) [Criminal law needs reform:
    Materials from a German-Japanese-Polish-Turkish conference in 2015 in Rzeszów and Kraków] (2016); Sabbe
    & Temmerman & Brems & Leye, supra note 34; Gangoli & Chantler, supra note 35; HAENEN, supra note 23.
158
    See generally Schweizerisches Strafgesetzbuch [STGB] [CRIMINAL CODE] Dec. 21, 1937, art. 181(a) (Switz.).
159
    See generally STRAFGESETZBUCH [STGB] [CRIMINAL CODE], May 15, 1871, art. 237 (1871) (Ger.).
160
     See generally STRAFGESETZBUCH [STGB] [CRIMINAL CODE] Jan. 23, 1974, art. 106(a) (Aus.).


                                                          48
 2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol: 5 :1


 Belgium.161 However, it is worth mentioning briefly the pros and cons of criminal
 intervention, in particular, to illustrate whether it is a necessity to adopt the same
 approach in the Turkish criminal system.
           The main argument of the opponents against a special criminal provision is that
 the majority of the victims do not want their parents to be prosecuted and ultimately
 faced with imprisonment.162 As a result, those against criminalisation state that victims
 may decide not to come forward.163 Although victims seek legal protection, the possible
 isolation from their social relations may induce them to realign with their families.164
 Another point to consider is that criminal proceedings may be found ineffective on the
 basis that the higher burden of proof required by criminal prosecution will make civil
 cases more advantageous. The conviction of offenders seems more unlikely because of
 the required proof beyond reasonable doubt in criminal cases.165 In addition, it may be
 argued that perpetrators could already be charged for the offences committed in the
 duration of a marriage, such as assault, sexual abuse and abduction. In this context, it is
 argued that codification of such a special provision means nothing but a symbolic
 gesture.166
           In order to argue in favour of criminalizing forced marriage, the key argument is
 that the prosecution could call the attention of not only citizens, but also government
 officers, on the intolerability of these violations.167 By doing so, victims would be given
 the opportunity to question their parents and seek legal assistance.168 The assumption,
 based on the unwillingness of victims, could turn out to be inaccurate since some of
 them may take action for emancipation from the authority of their parents.169 In the
 southeast of Turkey, the office of the prosecutor filed a public claim against the parents
 of a girl for attempting sexual molestation after the report of the girl as she was forced
 into marriage.170 In fact, the best interest of a child is the primary consideration under
 Article 3 of the UNCRC.171 According to the Convention, the state parties are under the
 obligation to protect the child from abuse while in the care of parents. The UK’s Select
 Committee on Home Affairs emphasized that the deterrent power of criminalization is
161
    See generally CODE PéNAL [C.Pén.] art. 391(e) (Belg.).
162
    Sabbe et. al., supra note 34, at 177.
163
    Gangoli & Chantler, supra note 35, at 272.
164
    See, e.g., Gupta & Sapnar, supra note 157, at 171.
165
    Simmons & Burn, supra note 17, at 994.
166
    Sabbe et. al., supra note 34, at 178.
167
    See, e.g.,Clark & Richards, supra note 157, at 504.
168
    HAENEN , supra note 23, at 252.
169
    See Mohammad Shams Uddin, Arranged Marriage: A Dilemma for Young British Asians, 3 DIVERSITY & EQUALITY IN
    HEALTH AND SOC. CARE 211, 214 (2006).
170
    Hilal Oztürk, Cocuk Gelinler Konusunda Ornek Dava, SACITASLAN (Jan. 8, 2012), http://www.sacitaslan.com/cocu
    k-gelinler-konusunda-ornek-dava-haberi-67482.
171
    UNCRC, supra note 8.


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          THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 another key reason stated by the victims.172 It may be argued that criminal law has
 already afforded sufficient apparatus to fight in defence of women as most of the
 offences are punishable acts under current criminal provisions.173 Nevertheless, this
 argument disregards the fact that a forced marriage violates some of the very basic
 human rights standards set by national and international documents.                                 Physical,
 psychological, financial, sexual and emotional force against the victim may be seen as a
 form of coercion in a forced marriage.174 In this sense, only a special provision could be
 sufficient to address such a simultaneous violation of numerous fundamental rights.
           The former Turkish Criminal Code took a leading position regarding forced
 marriages. One of the most controversial regulations was Article 434, which relates to
 reduction of the period of imprisonment for sexual offences.175 According to the said
 Article “If the abducted or detained girl or woman and one of the accused or convicted
 get married, the public prosecution initiated against the husband or if the sentence has
 been pronounced, the punishment shall be suspended.”176 The present provision had
 constituted an incentive for a forced marriage, since in many cases the victim was
 coerced to marry the offender in order to assure family honour.177 In fact, many women
 were raped and then forced to marry by families on the basis that marriage is the way to
 abrogate the disgrace as no one would acquiesce to a defective good other than the
 offender.178
           The New Turkish Criminal Code includes no specific offence of forcing someone
 to marry, although binding international mechanisms have previously been adopted.
 Under the current legislation, forced marriage could be challenged, pursuant to a list of
 provisions in the Turkish Criminal Code such as human trade (Article 80), threat (Article
 106) and child molestation (Article 103).179 Turkish criminal scholars and lawyers have
 criticized the lack of a special provision on the basis that the above mentioned offences


172
    See UNITED KINGDOM HOUSE OF COMMONS, HOME AFFAIRS SIXTH REPORT (2008).
173
    Clark & Richards, supra note 157, at 505.
174
    Geentanjali Gangoli, Khatidja Chantler, Marianne Hester & Ann Singleton, Understanding Forced Marriage:
    Definitions and Realities, in FORCED MARRIAGE: FORCED MARRIAGE: INTRODUCING A SOCIAL JUSTICE AND HUMAN RIGHTS
    PERSPECTIVES 25 (Aisha K. Gill & Sundari Anitha eds., 2011).
175
    In fact, a bill, relates to overturn sex offenders’ conviction in return of marriage, was proposed by the
    Government in 2016. By the opposition of the NGOs, the bill was withdrawn due to lack of public
    consensus. See Fury at Turkish Bill to Clear Men of Child Sex assault if They Marry Victims, THE GUARDIAN
    (Nov. 22, 1990), https://www.theguardian.com/world/2016/nov/18/turkish-bill-to-clear-men-of-child-
    sex-assault-if-the-marry-their-victims.
176
     1926 TARIHLI TURK CEZA KANUNU [ETCK] (Tarihli Türk Ceza Kanunu) [TURKISH CRIMINAL CODE OF 1926],
    art. 434 (1926) (Turk.).
177
    See Canan Arin, Turkey, in 2 ENCYCLOPEDIA OF WOMEN & ISLAMIC CULTURE 409 (Suad Joseph & Afsaneh Najmabadi
    eds., 2005).
178
    See generally SANCAR, supra note 81, at 137.
179
    Id.


                                                       50
 2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol: 5 :1


 are not adequate to bring justice for the victims of forced marriage, which violates
 multiple rights at the same time.180
           In practice, Turkish national courts have, in the past, prosecuted forced marriage
 perpetrators on the basis of sexual crimes. In many cases, girls under the age of fifteen
 are married to men over the age of fifteen by the mutual consent of their parents.181
 Under Article 103 of the Turkish Criminal Code, regardless of whether the victim gives
 consent or not, all kinds of sexual attempt against children who are under the age of
 fifteen constitute child molestation.              Sexual acts committed against other children
 (between the age of fifteen and eighteen) by force, threat, fraud or other reasons
 affecting the willpower of the victims is also a violation of Article 103. Therefore, the
 alleged husbands have been sentenced to no less than sixteen years imprisonment, in
 case of performance of sexual abuse by inserting an organ or instrument into a body.182
 Moreover, the Turkish Court of Cassation held that parents of victims and offenders
 would be subjected to an appropriate penalty to the offence that was committed for
 incitement.183
           Sexual intercourse between/with persons who have not attained the lawful age of
 consent is another sexual crime for penalizing the offenders of forced marriage. According
 to Article 104 of the Turkish Criminal Code, any person who has sexual intercourse with
 a child who reached the age of fifteen, without using force, threat and fraud is sentenced
 to a term of imprisonment from two to five years upon the filing of a complaint. This
 clearly illustrates that, in opposition to child molestation, sexual intercourse must occur
 under the consent of the victim. In terms of protection of the victim the said provision is
 problematic on two grounds. Firstly, it is worth mentioning that sexual acts besides sexual
 intercourse, such as oral sex or penetration of a non-sexual organ, do not violate Article
 104. For instance, the Turkish Court of Cassation stated that penetration of a finger into
 the vagina of a girl by a woman cannot be interpreted as sexual intercourse since such a
 relationship is possible only by penetration of penis by a man into the vagina or anus.184
 Secondly, a criminal case against the offender is possible only if the victim submits a claim
 related to the crime to the office of the public prosecution, or the offices of the security
 forces. In certain cases, the court of the first instance shall dismiss the case, on the grounds

180
    See, e.g., Meral Ekici Şahin, Ceza Hukuku ve Zorla Evlendirme [Criminal Law and Forced Marriage], 2 PROF. DR.
    NEVZAT TOROSLU’YA ARMAǦAN 395, 425-26 (2015).
181
    Consensual sexual intercourse of two children between the age of 15 and 18 is not a criminal offence under
    Turkish criminal law.
182
    See, e.g., supra note 10, art. 103/2.
183
    See Yargitay [YARG] [TURKISH COURT OF CASSATION] Fifth Chamber of Criminal Division, Feb. 28, 2007,
    2007/29 E., 2007/1609 K. (Turk.).
184
    See generally Yargitay [YARG] [TURKISH COURT OF CASSATION] Fourteenth Chamber of Criminal Division,
    Apr. 21, 2014, 2012/6729 E., 2014/5373 K. (Turk.).


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           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 that the right to file a complaint is the preserve of the parents concerned, notwithstanding
 the victim’s resolve. However, in the opinion of the present authors, the Turkish Court of
 Cassation rightly held that the court of first instance is under an obligation to continue
 the adjudication if the victim demanded to do so.185
            In spite of the general acceptance of the High Court on preventing forced
 marriage by sentencing offenders for sexual offences, courts of first instance may decide
 on no grounds for prosecution in consideration of mistake of the law. In Nevşehir, as
 stated above, the court of assize found that the defendant lacks the awareness that he is
 acting unlawfully since early marriage is not considered illegal or inconvenient in the
 eyes of the society.186 In the same manner, some Turkish academics did concur with the
 conclusion of the court.187
            The findings of the Court indeed invite criticism in two main respects. Firstly,
 the defence on the unawareness of criminalization of early marriage is baseless since
 nationwide campaigns against forced and child marriage have been running by NGOs for
 women’s rights for a considerable time. Additionally, international organisations such as
 the UNICEF runs training programmes with the collaboration of the Ministry of Family
 and Social Policies.188 Therefore, the act cannot be considered a reasonable mistake to
 make as the defendants must have known the illegality of their acts. Arguments based on
 ignorance of the illegality of child marriage cannot be deemed reasonable in the modern
 age.189 Secondly, the judgement of the Court, which rests on the social and cultural
 factuality, fails to comply with the developmental effect of the judiciary. Instead of
 making decisions in line with social narratives, the Court should have served solving
 social problems by judicial activism. It cannot be denied that social norms are highly
 influential in formulating criminal law.190 Crime control becomes possible only if a
 criminal law contains moral codes reflecting the community it rules.191 However, these
 norms may also encourage violation of the laws as in the case of forced marriage.192
185
    Contra Yargitay [YARG] [TURKISH COURT OF CASSATION] Fourteenth Chamber of Criminal Division, May 7,
    2015, 2013/7341 E., 2015/6190 K. (Turk.).
186
    Supra note 5.
187
    E.g., MAHMUT KOCA & ILHAN ÜZüLMEZ: TüRK CEZA HUKUKU öZEL HüKüMLER [TURKISH CRIMINAL LAW PRIVATE PART]
    319 (2015).
188
    See Child Marriage, UNICEF (2020), https://www.unicef.org/turkey/en/child-marriage.
189
    See generally Fahri Gökçen Taner, Anayasa Mahkemesi’nin Çocukların Cinsel İstismarına ve Evlenmenin Dinsel
    Törenini İlişkin İptal Kararlarinin Ardindan Cok Katmanli Bir Cozum Onerisi [A Multiple Layered Solution Proposal
    After the Decision of Constitutional Court Related to Child Sexual Abuse and Religious Ceremony of Marriage] TüRKIYE
    BAROLAR BIRLIĞI DERGISI [TBB], at 221, 240 (2016).
190
    See generally WAYRNE R. LAFAVE, CRIMINAL LAW 14 (2003).
191
    See Paul H. Robinson, Why Does the Criminal Law Care What the Layperson Thinks is Just? Coercive versus Normative
    Crime Control, 86 VA L. REV. 1839, 1841 (2000).
192
    For instance, the findings show that cultural acceptance of violence triggers use of violence in the future. See
    Jennifer E. Lansford & Kenneth A. Dodge, Cultural Norms for Adult Corporal Punishment of Children and Societal
    Rates of Endorsement and Use of Violence, 8 PARENTING: SCI. AND PRAC. 257, 265 (2008).


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 2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol: 5 :1


 Although criminal law cannot change the acceptance of the community, it can shape
 social norms and the understanding of individual morality.193 The coercive power of
 criminal law is a key factor in terms of dealing with forcing girls to get married.
           Another related point to the subject is the effect of religious marriage performed
 by imams on underage marriages. Although it may be argued that there is no connection
 between religious rituals and such marriages, statistics indicate the contrary. According to
 surveys, 62,7% of underage marriages are performed by religious representatives (imam)
 and therefore, have only religious significance but no legal effect, given the fact that the
 civil law marriage has not been concluded.194 The main reason is that, as stated above,
 the Turkish Civil Code states, as a rule, that the age of marriage as eighteen, the age of
 seventeen upon consent of the legal guardians and the age of sixteen in case of exceptional
 circumstances upon a court’s approval. The victims are mostly under the age of sixteen.
 Hence, the legal impossibility of a civil marriage under the age of sixteen leads the society
 to religious marriage and opens the way to sexual abuse.
           In terms of coping with early marriages, the Turkish lawmaker introduced
 Article 230, which penalized having a religious marriage performed by an imam prior to a
 civil marriage.       The main reason for the aforementioned legislation is abrogating
 backward understanding within the society.195 Persons who hold a religious marriage
 ceremony without an official marriage shall, therefore, be sentenced to a penalty of
 imprisonment for a term of two to six months. In other words, couples are required first
 to marry in a civil ceremony before having a religious marriage. It can be strongly
 argued that such a precaution was adopted to prevent polygamy as one of the wives can
 marry in a civil ceremony. In contrast, the others can only marry through a religious
 ceremony.196 It is worth noting that in the case of polygamy, the other wives do not
 obtain an official status, hence cannot obtain a certain number of rights such as the right
 of inheritance.197 Moreover, in terms of averting plural marriage, any person who
 administers a religious marriage ceremony without issuing a document verifying an
 official marriage which has been concluded in accordance with the law shall be
 sentenced to a penalty of imprisonment for a period of two to six months. Therefore,
 religious representatives may also be punished by law, since a religious ceremony is
 merely secondary and optional.


193
    Robinson, supra note 191, at 1868.
194
    HACETTEPE ÜNIVERSITESI NüFUS ETüTLERI MUDURLUGU, supra note 4, at 76.
195
    Taner, supra note 189, at 240-241.
196
    Ilkkaracan, supra note 141, at 69.
197
    See Jenny B. White, State Feminism, Modernization, and the Turkish Republican Women, THE NAT’L WOMEN’S STUD.
    ASS’N. J., Fall 2003, at 145, 156 (2003).


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           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 The Turkish Constitutional Court overruled the two clauses of the aforementioned Article
 on the basis of privacy of private life198 and freedom of religion and conscience.199 The
 Court held that the principle of rationality was violated since, although living together and
 having children without a civil marriage is not criminalized, the present Article penalizes
 the right to have a religious marriage.200 The findings of the Court completely disregard
 the logic behind the codification of such an Article. The legislature has aimed to encourage
 monogamy and to secure the rights of women under marriage agreements by stipulating
 the importance of civil marriage in Turkey. Paradoxically, the law which was recently
 passed by the Turkish parliament regarding the authorization the muftis need to conclude
 a civil marriage illustrates the intention of the law makers in favour of recognising legally
 religious marriage but not recognising de facto unions.
           As stated above, two provisions of the Turkish Civil Code lead to applications for
 marriages under the age of eighteen in Turkey. The first one is Article 124 (1) of the
 Turkish Civil Code, which sets the minimum age of marriage as seventeen. The second
 one is Article 124 (2) of the Turkish Civil Code which allows marriages at the age of
 sixteen upon a court’s approval in the case of exceptional circumstances. Considering
 the international obligations of Turkey derived from the CEDAW and UNCRC; the first
 scenario should result in a comprehensive revision of these provisions in the immediate
 future.    Accordingly, the minimum age of marriage must be amended to eighteen,
 compatible with the age of consent. More importantly and urgently, Article 124 (2)
 regarding marriage at the age of sixteen in case of exceptional circumstances, should
 also be amended. Furthermore, Article 11 (2) of the Turkish Civil Code, which recognises
 as of age the person married under the age of eighteen must be abrogated, due to the
 fact that this provision puts the married child into the shoes of an adult. As a rule, under
 the age of eighteen, children may only enter into obligations or give up the rights with
 the consent of their legal guardians in the Turkish legal system.201 However, just after
 the marriage, Article 11 (2) of the Turkish Civil Code allows a married child of seventeen
 or sixteen years old to enter into obligations or give up the rights without the consent of
 her/his legal guardians. On the one hand, the Turkish legal system considers a person
 under the age of eighteen as a minor and protects her/him even from her/his acts such
 as entering into obligations and requires her/his legal guardians consent to do so, but on
 the other hand it allows a person of sixteen or seventeen years old to marry upon

198
    See Turkiye Cumhuriyeti Anayasasi [TCA] (Türkiye Cumhuriyeti Anayasası) [THE CONSTITUTION OF THE
    REPUBLIC OF TURKEY] art. 20 (1982) (Turk.).
199
    Id. art. 24.
200
    See generally Anayasa Mahkemesi [AM] [CONSTITUTIONAL COURT] , Official Gazette June 10, 2015 - 29382,
    2014/36 E., 2015/51 K. (2015) (Turk.).
201
    Supra note 9, art. 16.


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 2020]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol: 5 :1


 her/his legal guardian’s consent or court approval, and assumes her/him as an adult
 after the marriage ceremony.
           If these amendments of the Turkish Civil Code cannot be realised, the second
 scenario should target the courts. Considering Article 90 (5) of the Turkish Constitution,
 which states that in the event of a conflict between an international agreement and the
 domestic law that regards fundamental rights and freedoms, the judge has the discretion
 to apply the international agreement.202 Judges determine the conflict between Article
 124 (2) of the Turkish Civil Code and international agreements in relation to the
 fundamental rights and freedoms such as those conferred by CEDAW and UNCRC. Judges
 must directly apply the international law and must dismiss the cases regarding court
 approvals for the marriages under the age of sixteen in exceptional circumstances. Yet,
 these cases can be the subject of individual applications before the Turkish
 Constitutional Court.
           In this second scenario, judges cannot consider marriages of persons at the age
 of seventeen because it does not require a judge’s approval; the prospective spouses must
 only submit the legal guardian’s written and notarised consent when they apply for the
 marriage203 Therefore the judge cannot determine whether a conflict between the
 domestic law and the international law has taken place because the judge in question is
 not in charge of the application procedure and the marriage ceremony.                           The only
 solution is to revise the current law in order to prevent marriages at the age of seventeen
 and to take measures accordingly.
           Whilst considering the origins of the Turkish Civil Code, the revision of the Swiss
 Civil Code against forced marriage can provide a very close model. In Switzerland,
 besides the abrogation Jan. 1, 1996, of the provision which allowed marriage under the
 age of eighteen based on exceptional circumstances, a Federal Law on Measures to Fight
 against Forced Marriages also entered into force on July 1, 2013.204 The provisions of the

202
    According to Article 90 of the Turkish Constitution of 1982,
                  [I]nternational agreements duly put into effect have the force of law. No appeal to
                  the Turkish Constitutional Court shall be made with regard to these agreements, on
                  the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act
                  No. 5170) 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.
203
    Supra note 9, art. 136.
204
    See, e.g., French version is available athttps://www.admin.ch/opc/fr/federal-gazette/2012/5479.pdf; e.g.,
    German version is available at https://www.admin.ch/opc/de/federal-gazette/2012/5937.pdf (last accesses
    October, 18 2017); Switzerland ratified the Istanbul Convention in May 2017. No legislative alteration
    is necessary since Switzerland has already met the standards of the Convention. See Switzerland
    ratifies the Istanbul Convention, HUMANRIGHTS.CH, https://www.humanrights.ch/en/switzerland/internal-
    affairs/ratifications/switzerland-ratifies-istanbul-convention (last accessed 26.10.2017).


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           THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


 Swiss SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907, in relation to the
 annulment of marriage and the civil registrar’s preparatory procedure for marriage have
 been revised. In view of that, the civil registrar must examine firstly, the age of the
 future spouses.205 This is the first barrier in order to prevent a marriage of persons
 under the age of eighteen.206 The civil registrar, secondly, examines whether there are
 any circumstances that illustrate that the request clearly does not reflect the free will of
 the prospective spouses.207 Despite this barrier,208 if a forced marriage were to occur, the
 Swiss SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907, would adopt a
 new regime of annulment of marriage without time limitation on two grounds.209 The
 first one is related to the case where one of the spouses did not conclude the marriage
 with her/his free will and the second is related to such cases where one of the spouses
 did not reach the age of eighteen at the time of the marriage.210
           Moreover, Article 152 of the Turkish Civil Code regarding the annulment of
 marriage in case of duress must also be revised. The current provision is problematic on
 two grounds. Firstly, only marriages which are concluded with the consent of the spouse
 under duress that creates a serious and immediate danger to directly her/his or one of
 her/his relatives’ fundamental rights such as life, health, honour and dignity can be
 annulled. Therefore, this provision does not outline psychological or social pressure as
 duress. Secondly, the provision clearly stipulates a time limitation for the annulment of
 the marriage, such as six months starting with the end of duress and five years after the
 marriage was concluded. In order to protect the victims of forced marriages, the concept
 of “force” should be redefined, and the psychological and social pressure has to be
 included and the claim of the annulment of marriage should be off the time limitation.
205
    Federal Law on Measures to Fight against Forced Marriages revised also the Swiss SCHWEIZERISCHES
    STRAFGESETZBUCH [STGB] [CRIMINAL CODE], Dec. 21, 1937 and inserted a new norm concerned the forced
    marriage and forced registered partnership into the Code as follows:
                 [A]ny person who, by the use of force or the threat of serious detriment or other
                 restriction of another’s freedom to act compels another to enter into a marriage or to
                 have a same-sex partnership registered is liable to a custodial sentence not exceeding
                 five years or to a monetary penalty.
    “Consequently, the register authorities are obliged to report to the competent authority the cases of coercion
    and the other offenses that come to their attention while carrying out their official duties”, according to
    article 43 (3) of the Swiss SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907.
206
    See generally Andreas Bucher, L’accueil des mariages forces, AJP/PJA 1153, 1154 (2013).
207
    Supra note 137, art. 99(1)(3).
208
    The civil registrar may have some difficulties in order to understand whether the prospective spouses
    manifest their free will or not, see Bucher, supra note 206, at 1155.
209
    According to art. 106(1) of the Swiss SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [Civil Code] Dec. 10, 1907
                 an action for annulment is brought ex officio by the competent cantonal authority
                 at the domicile of the spouses; in addition, any interested party is entitled to bring
                 such action. Provided this is compatible with their duties, the federal and cantonal
                 authorities shall contact the authority competent for the action if they have reason
                 to believe that there are grounds for annulment.
210
    See supra note 137, art. 105.


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 2020]                          UNIVERSITY OF BOLOGNA LAW REVIEW                           [Vol: 5 :1


         CONCLUSION

 Even though Turkey experienced a radical law reform which represents the move from
 a legal system based on religious law to a legal system built on secular and democratic
 values after the foundation of the Turkish Republic in 1923, the country still struggles
 with its religious and socio-cultural legacy and the forced marriage of children is one of
 the problems created by this background. Unfortunately, statistics illustrate that most
 victims are girls.
             Forced marriage is considered as a marriage or a union alike which lacks full and
 free consent of at least one party and duress is involved. Even though the union is not
 recognized as a civil marriage, like religious marriages in Turkey, if one of the party’s
 consent is lacking or she/he is forced to marry; the aforementioned union must be
 considered as a forced marriage. In fact, statistics show that underage marriages are
 generally performed by religious representatives i.e. imams in Turkey.
             In cases where a future spouse is a child, her/his consent is contradictive,
 whether she/he did or could give her/his informed consent to marriage or not. Adopting
 this approach, the Committees of the CEDAW and the UNCRC have recommended to the
 member states “[n]ot to allow exceptions to minimum age of marriage even with
 consent”.
             The phenomenon of forced marriage of children in Turkey has two faces like a
 medallion; on the one hand, there is a socio-cultural and economic background and on
 the other hand, there is a legal environment which allows marriages under the age of
 eighteen and does not criminalize forced marriage. In many cases, girls have no choice
 but to marry the man chosen for them by their parents in order to safeguard the family’s
 honour since a young girl may put her purity in danger by making mistakes.
             Yet, the Turkish Civil Code adopts a controversial position by allowing a
 marriage of a child who is seventeen years old upon the consent of her/his legal
 guardian and sixteen years old upon a court’s approval in exceptional circumstances
 according to Article 124 of the Turkish Civil Code. Religious marriages are part of the
 socio-cultural practices and have no legal effect. Granting authorization to muftis/imams
 to perform civil marriages cannot prohibit211 underage religious marriages due to the
 fact that the muftis will be allowed to conclude a marriage which requires at least the
 spouses at the age of seventeen with the consent of their guardians or the spouses at the
 age of sixteen with the court’s approval according to the Turkish Civil Code. However,
211
      See Raf Sanchez, New Turkish Marriage Law Prompts Fear of Child Weddings, THE TELEGRAPH, (2017),
      https://www.telegraph.co.uk/news/2017/11/03/new-turkish-marriage-law-prompts-fears-child-wedding
      s/.


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       THE UNACCEPTABLE SPECTRE OF UNDER-AGED FORCED MARRIAGE IN TURKEY


under these circumstances, there is no legal prohibition to conclude religious marriages
by the imams.
       The present authors are of the opinion that serious measures must be taken in
order to fulfil the international commitments of Turkey in terms of civil and criminal
standards. First of all, the Turkish lawmaker must change the Civil Code to forbid
marriages under the age of eighteen, without envisaging any exceptions. Secondly, a
special criminal provision must be included in the Turkish Criminal Code to prevent
forced marriages, as seen in criminal codes in other European jurisdictions. Lastly,
perhaps most importantly, the social dynamics on sexual taboos and the position of
women in Turkey must be ameliorated through educating society since the problem of
forced marriage cannot be prevented merely by passing laws against it.




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