Geçici Koruma Altındaki Suriye Vatandaşlarının Çocuk Yaşta Evliliklerinin Mukayeseli Hukuka ve Türk Hukukuna Göre Geçerliliği
Bu çalışmada; Türkiye’de geçici koruma altında bulunan Suriyelilerin yaptıkları ve giderek artan çocuk yaşta evliliklerin hukuki boyutu ele alınacaktır. Bu kapsamda; Suriyelilerin Türkiye’ye gelmeden önce veya geldikten sonra yaptıkları çocuk yaşta evliliklerin geçerliliğine uygulanacak hukukun belirlenmesine ilişkin meselelere, Türk kanunlar ihtilafı kuralları çerçevesinde mukayeseli hukuktan da yararlanılarak çözüm getirilmeye çalışılacaktır. Bu meseleler arasında; Türk hukukuna göre, “geçici koruma statüsü” verilen ve “mülteci” olarak kabul edilmeyen Suriyelilerin “şahsi statüsü”ne uygulanacak hukukun tespiti üzerinde özel olarak durulacaktır. Bunun yanında; evlenme yaşına uygulanacak hukukun Suriye hukuku olarak belirlendiği hallerde, Suriye hukukunda yer alan evlenme yaşına ilişkin hükümlerin uygulanmasında Türk kamu düzenine aykırılık istisnası ve bu kapsamda “çocuğun üstün menfaatinin korunması” ilkesinin rolü de özel olarak değerlendirilecektir. Ayrıca, çocuk yaşta evliliklerin Türk hukukunda tanınmamasının neticeleri, AİHS m 8 uyarınca “aile hayatına saygı hakkı” çerçevesinde değerlendirilecektir. Bunlara ek olarak; İsviçre, Hollanda ve Alman hukuklarında, çocuk yaşta evliliklerle mücadele etmek üzere son yıllarda gerçekleştirilen mevzuat değişiklikleri incelenecektir. Bu mevzuat değişikliklerinden; özellikle, yabancı ülkede yapılan çocuk yaşta evliliklerin geçerliliğine yetkili yabancı hukukun uygulanmasında kamu düzenine aykırılık değerlendirmesini dışlamaya yönelik hükümler içeren düzenlemeler ele alınacak ve Türk hukukunda bu kapsamda atılabilecek adımlara örnek teşkil edip etmeyecekleri değerlendirilecektir.
Validity of Child Marriages of Syrians Under Temporary Protection in Comparative and Turkish Law
Due to the increasing numbers this article focuses on the legal aspects of child marriages contracted by Syrians under “temporary protection” in Turkey. In this context, the legal issues regarding the determination of applicable law to the validity of child marriages conducted in Turkey or abroad by the Syrians will be investigated within the framework of Turkish Private International Law with a comparative law perspective. Among these legal issues, special emphasis will be put on the governing law of the personal status of Syrians in Turkey since they are granted “temporary protection status” and not recognized as “refugees” under Turkish law. Another special emphasis will be put on the public policy (ordre public) exception during the application of Syrian law and rules on marriage age and the role of “the protection of the best-interests-of-the-child” principle. Furthermore the impact of the non-recognition of child marriages will be explored in the context of “the right to respect for family life” of ECHR Art 8. In addition, the legislative measures recently adopted to combat and prevent the recognition of child marriages under Swiss, Dutch and German laws will be revealed. These legislative measures, especially those aimed at eliminating the public policy exception in determining the applicable law to the validity of child marriages contracted abroad will be analyzed. An evaluation will be reviewed to decipher whether they can be considered as the next steps to be adopted by Turkish law.
The recent influx of immigrants from Syria has led to an increase in child marriage practices across Turkey as in many other European countries. Turkey, being a party to the international conventions and a member of the Council of Europe, is under the obligation to take all measures to prevent and eliminate child marriage practices across Turkey, regardless of the nationality of the children in its country.
Among various aspects, this article focuses on the legal aspects of child marriages contracted by Syrians under temporary protection in Turkey. In this context, the legal challenges regarding the determination of applicable law to the validity of child marriages concluded in Turkey or abroad by Syrians will be tried to be resolved under international private law rules in Turkey. Also, the legislative measures recently adopted under Swiss, Dutch and German laws to prevent the recognition of child marriages will be analyzed to make proposals in Turkish law.
Due to the qualification of the marriage-age as an issue related to the marriage capacity under Turkish law (lex fori), applicable law to the marriage-age is the national laws of each spouse at the moment of marriage (TrIPL1 Art 13). In the application of this provision to Syrians under temporary protection, it should be clarified first whether TrIPL Art 4/1(a) is applicable to them in the determination of their national law. Art 4/1(a) which is similar to the 1951 Refugee Convention Art 12 states that; regarding the legal actions concluded by refugees and stateless persons in Turkey, the law of the country of domicile or the law of the country of habitual residence or, law of the country where they are located at the beginning of the proceedings shall be applied instead of their national laws. The debate here is, whether the term refugee in this provision includes the temporary protection status or not. This article suggests that, Art 4/1(a) should be interpreted to include temporary protection status since the parliamentary report has put forward the ratio legis of the provision as regulating the legal actions of all de-facto stateless persons who cannot benefit from the diplomatic protection of the country which they are citizens for any reasons during their stay in Turkey2 .
In this regard, the marriages concluded in Turkey by Syrians under temporary protection shall be governed by Turkish law as the law of their country-of-residence. In Turkish law, the marriage age is 17, but if a person does not reach the majority (18 years-old), it is only allowed with the permission of a legal representative. However, under exceptional circumstances, it may be allowed by a judge permit at the-age-of 16 (TrCC3 Art 124/2). According to the Turkish Supreme Court decisions marriages which are contracted under the exceptional marriage age of 16 are null and void4 . However marriage-age in the marriages concluded abroad shall be governed by Syrian law as the “national law” of the Syrian spouse(s), since Art 4/1(a) is applicable only to the legal actions concluded in Turkey. The provisions of the Syrian Law of Personal Status 1953, allows 13-years-old (and even younger if they’re already pregnant) girls to marry (Art 18).
As the exceptional marriage age is 16 according to Turkish law, in cases where at the time of recognition the Syrian spouse is under 16 years old, it shall be determined whether the recognition of such marriages by application of the rules of Syrian law would be manifestly contrary to Turkish public policy under TrIPL Art 5 and if so which law should be applied to the consequences of such an invalid marriage. This article suggests that; it is not possible and appropriate to draw a minimum age limit in child marriages, since the application of public policy exception requires an individual case-by-case determination regarding the circumstances of each case and a manifest violation of Turkish public policy under TrIPL Art 5. Moreover, in child disputes, the best interests of the child also shall be taken into account in all circumstances. Hence, the refusal of the recognition of a child marriage based on the public policy exception should not cause greater harm for the child victim, especially regarding the effects of the marriage. In this respect, in cases where at the time of recognition one of the Syrian spouses is under the-age-of 16, public policy exception should not lead to an automatic non-recognition of the marriage and the assessment should be done in a manner to strike a fair-balance between the values of Turkish society and the protection of the best interests of the child. However, it is also concluded that, as the sexual acts with children under the-age-of 15 are criminalized as sexual child abuse under TrPC5 Art 103/1(a), the application of Syrian law which allows marriages under the-age-of 15 may very likely be found manifestly contrary to Turkish public policy and such marriages where at the time of recognition one of the Syrian spouses is under 15-years old may not be recognized under Turkish law. In cases where a manifest violation of Turkish public policy has been decided, it is suggested under TrIPL Art 5, the consideration must firstly be put on Syrian law (lex causae) and if no solution can be found it shall be referred to Turkish law (lex fori). Therefore, regarding the law applicable to the effects and consequences of non-recognised child marriages, Syrian law rules should be applied; according to which, the marriages contracted under the minimum marriage-age shall be found voidable but not void.
It is also concluded that, under Art 8 and Art 12 of EHCR and ECtHR resolutions, any non-recognition of a child marriage does not constitute a violation of “the right to respect for family life”. However, since de-facto relationships which considered as “family life” are also protected under EHCR Art 8; it is underlined that the protection measures taken for the minor spouse upon the non-recognition of a child marriage by Turkish courts must be in accordance with the principle of proportionality to not constitute a violation of EHCR Art 8.
Lastly, legislative measures which aim at implementing the lex loci celebrationis instead of the “national laws of each spouse” (Swiss IPRG Art 44, 45a; Dutch BW Art 10:28-10:32:c; German EGBGB Art 13/3) as the law applicable to the marriage capacity and terms of marriage concluded in the country and eliminating the public policy exception by bringing a general prohibition for the recognition of child marriages contracted abroad (IPRG Art 45a; BW Art 10:32:c; EGBGB Art 13/3) adopted in Swiss, Dutch and German conflict-of-law rules in the context of preventing and combating child marriages are not found to be consistent with the principle of the protection of the best interests of the child in international private law. It is suggested that the best tool at preventing and combating the child marriage in international private law is the public policy exception which enables to strike a fair-balance between the values of the country and the best interest of the child by a case-by-case analysis.