Following the announcement of the Turkish election results yesterday, what can we say about disability rights, voting and legal capacity? A lot actually, according to Didem Tekeli, EU-PERSON co-ordinator at RUSIHAK. After all, tens of thousands of Turkish citizens are denied the right to vote if they are placed under guardianship.
Takumi Nagoya is a fifty two years old woman from Japan who had enjoyed her right to vote till she was put under guardianship in Tokyo. Her father became her legal guardian who fiercely supported his daughter in the fight to regain her right to vote. In 2011 Takumi-san sued the Japanese government and the court made its ruling in 2013. Mr. Makoto Jozuka, the judge of Tokyo District Court, ruled that the article in Japan’s Election Law which deprives persons under adult guardianship of their right to vote is unconstitutional. The court decided to re-establish Takumi Nagoya’s right to vote and Mr. Jozuka called for everyone in Japan who are discriminated in this way to act:
“Please use your political rights and take part in society. Be proud and lead a good life.”
Seventy four days after the court decision, the Japanese Parliament repealed the discriminatory article. In this way, Japan took an important step towards recognizing the legal capacity and political rights of persons with disabilities.
In Turkey, on the other hand, persons under adult guardianship still do not have right to vote.
On 7th June 2015, we voted to elect our representatives for the 25th term of our Parliament, Turkish Grand National Assembly (TGNA). However persons with psycho-social and intellectual disabilities who are under guardianship did not take part in this political process. Though it is difficult to give exact numbers, we assume that at least two million Turkish citizens are people with mental disabilities, and a significant proportion of these are under guardianship. It is this group that were not able to enjoy their basic democratic right–thus, today the TGNA does not represent their vote.
Yet like Japan, according to the law, it is unconstitutional in Turkey that persons with psycho-social and intellectual disabilities under adult guardianship are not recognised as voters. Our Constitution enshrines that all persons are equal before the law (Article 10) and that they possess inherent fundamental rights and freedoms, which are “inviolable and inalienable” (Article 12). It is also in our Constitution that everyone has the freedom of thought and opinion (Article 25).
According to the last paragraph of Article 90 of the Constitution, “international agreements duly put into effect have the force of law”. It is clearly stated that “no appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional”. According to the sentence added on May 7 2004 to Article 90 of the Constitution under the Act No. 5170, it is stated that “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”. Taking these Articles into consideration and reading Article 29 of CRPD (ratified by Turkey in 2009), we expect that persons with psycho-social and intellectual disabilities who are under guardianship should have the right to vote. Yet, this is not the case.
Turkish Law on Basic Provisions on Elections and Voter Registers (Law no. 298) defines the citizens who are not eligible to vote based on definitions set by Turkish Civil Code (TCC, Law No. 4721). Article 8 of Law No. 298 declares that persons who are restricted “cannot be voters”, meaning they cannot possess the right to vote. The definition of “restricted persons” is provided by TCC. Article 405 of TCC states that “every adult who cannot conduct his duties or requires constant assistance for protection or care, or endangers the safety of others due to mental illness or defectiveness, is restricted.” Also Article 408 of TCC states that “every adult who proves that s/he cannot duly manage his activities due to old age, disability, inexperience, or severe diseases may require restriction.” Therefore if a person with psycho-social or intellectual disability is restricted with court decision, they are not voters according to Turkish election law.
The Supreme Electoral Council of Turkey does not count persons with intellectual and psycho-social disabilities as disabled citizens who have the right to vote and thus they do not take any steps to make the election process accessible to them. It is obvious from the Council’s decisions, statements, and directives that they strictly apply TCC and Article 8 of Law No.298. At this point we note that neither political parties nor independent candidates in Turkey discuss the voting rights of persons with intellectual and psycho-social disabilities. Consequently, neither elections nor the process leading to elections are accessible to them.
Article 405 of TCC states that, persons who are put under guardianship should be registered by the State as soon as this decision is taken. However, by looking at practice we understand these registrations are not always immediate or accurate. Sometimes, as a result of misconduct, persons under guardianship receive necessary documents from authorities which enable them to vote. Since everyone whose name is on “voters lists” have right to vote, they become able to use their right.
Even at times when persons under guardianship enjoy their right as a result of a human mistake, we cannot conclude that they actually take part in elections. This is simply because Supreme Electoral Council does not count persons with intellectual and psycho-social disabilities as disabled citizens who have right to vote and thus they do not take any steps to make the election process accessible to them. It should also be noted that neither political parties nor independent candidates accept these persons as voters and shape their campaigns accordingly. When we read decisions, statements, directives issued by Supreme Electoral Council in Turkey, we see that from “disabled voters” our system only understands physically disabled, blind and deaf persons. Unfortunately neither elections nor the process leading to elections are accessible (even) to them.
(TCC) SECOND DIVISION
CASES REQUIRING GUARDIANSHIP
Art 404. – Every infant not in parental custody shall be appointed a guardian. Civil registrars, administrative authorities, notary publics and courts who in the performance of their duties learn of such situation must notify the competent guardian authority immediately of a case requiring a guardian.
- Mental illness or mental incapacity
Art 405. – Every adult unable to manage his own affairs as a result of mental illness or incapacity and is in constant need of care and protection or who poses a threat to the safety of others must be appointed a guardian. Administrative authorities, notary publics and courts who in the performance of their duties learn of such situation must notify the competent guardian authority immediately of a case requiring a guardian.
- Profligacy, alcohol or drugs addiction, disreputable lifestyle, mismanagement
Art 406. – Any adult who exposes him/her or his/her family to the risk of hardship or poverty through profligacy, alcohol or drug addiction, a disreputable lifestyle or mismanagement of property and is therefore in constant need of care and protection, or who poses a threat to the safety of others must be appointed a guardian.
III. Prison Sentence
Art 407. – Every adult sentenced to a prison sentence for one year or longer must be appointed a guardian. The corrections authority must notify the competent guardian authority for the appointment of a guardian as soon as this person begins to serve his/her sentence.
- Upon request
Art 408. – Every major who for reasons of seniority, disability, inexperience or heavy illness proves that he or she is unable to manage his affairs properly may also ask for the appointment of a guardian.
This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of PERSON (Partnership to Ensure Reforms of Supports in Other Nations) and can under no circumstances be regarded as reflecting the position of the European Union.