SECOND SECTION
CASE OF YAVUZ NAL AND OTHERS v. TURKEY
(Applications nos. 11736/09, 592/11, 47028/11 and 49731/11)
JUDGMENT
STRASBOURG
13 June 2017
This judgment is final but it may be subject to editorial revision.
In the case of Yavuz Nal and others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Paul Lemmens,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in four applications (nos. 11736/09, 592/11, 47028/11 and 49731/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Turkish nationals, whose details are set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. Following their respective marriages, the applicants had to take their husbands’ surnames pursuant to the Civil Code. On various dates, they initiated proceedings before the first instance courts seeking permission to use only their maiden names. Their requests were rejected on the ground that according to Article 187 of the Civil Code, married women had to bear their husbands’ name throughout their marriage and were not permitted to use their maiden name alone. The details of the applications appear in the attached table.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 17 of the Constitution
“Everyone has the right to life and to protect and develop his/her physical and spiritual existence.”
Article 187 of the Civil Code
“Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage deed or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname ...”
5. Following the enactment of Article 187 of the Civil Code, three Family Courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional. In a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed the objection.
6. On 19 December 2013, 6 March 2014 and 16 April 2015 respectively; the Constitutional Court delivered three decisions on three individual applications which concerned the inability of the applicants to bear solely their maiden name following their marriage (Applications nos. 2013/2187, 2013/4439 and 2014/5836). Referring to the Court’s judgments in the cases of Ünal Tekeli v. Turkey (no. 29865/96, ECHR 2004‑X (extracts)), Leventoğlu Abdulkadiroğlu v. Turkey (no. 7971/07, 28 May 2013), Tuncer Güneş v. Turkey (no. 26268/08, 3 September 2013) and Tanbay Tüten v. Turkey (no. 38249/09, 10 December 2013), the Constitutional Court held that Article 187 of the Civil Code was in contradiction with the Convention. Recalling that pursuant to Article 90 of the Constitution, international treaties that were duly in force were legally binding and that in case of a conflict between the domestic law and the Convention and its Protocols, the latter should take precedence over domestic law, the Constitutional Court held that the fact that a married woman could not solely bear her maiden name constituted a breach of Article 17 of the Constitution.
7. Based on the decisions of the Constitutional Court, on 30 October 2015 the Joint Civil Chambers of the Court of Cassation revised its case-law and concluded that a married woman could solely bear her maiden name.
8. Article 187 of the Civil Code still remains in force.
THE LAW
I. JOINDER OF THE APPLICATIONS
9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION
10. The applicants complained that the national authorities’ refusal to allow them to bear only their maiden name after their respective marriages amounted to a breach of Articles 8 and 14 of the Convention. They further maintained that the fact that Turkish law allowed married men to bear their own surnames after marriage and not married women constituted discrimination on grounds of sex and was incompatible with Article 14 of the Convention.
11. The Government contested that argument.
A. Admissibility
12. The Government asked the Court to reject the applications for non-exhaustion of domestic remedies. In this connection, they stated that there had been a change in the case-law of the Court of Cassation and consequently the applicants had now the possibility of lodging fresh applications before the domestic courts which would enable them to use solely their maiden name by court decisions.
13. The Court reiterates that the question of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court. The rule is subject to exceptions which may be justified by compelling reasons deriving from the specific circumstances and the context in which the remedy becomes available to the applicant (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). In the present case, the Court does not find any reasons justifying such an exception. In this connection, it notes that the change in the case-law of the Court of Cassation was in October 2015, whereas the present applications were lodged with the Court between 2009 and 2011. While the change in the case-law of the Court of Cassation could provide an effective remedy for new applications, in the present cases, the applicants, who had lodged their applications prior to the aforementioned change, could not be expected to make fresh applications in domestic law before lodging their applications with the Court. The Court therefore rejects the Government’s preliminary objection in this regard.
14. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
15. The applicants complained that the authorities had refused to allow them to bear only their own surname after their respective marriages, whereas Turkish law allowed married men to bear their own surname. They submitted that this resulted in discrimination on grounds of sex and was incompatible with Article 14 taken together with Article 8 of the Convention.
16. The Government did not submit any observations on the merits.
17. The Court notes that in the case of Ünal Tekeli v. Turkey (no. 29865/96, ECHR 2004‑X (extracts), which raised issues similar to those in the present case, it observed that this difference in treatment on grounds of sex between persons in an analogous situation was in breach of Article 14 taken in conjunction with Article 8 (ibid., §§ 55-69).
18. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present cases. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 14 of the Convention in conjunction with Article 8.
19. Having regard to that conclusion, the Court does not consider it necessary to determine whether there has also been a breach of Article 8 taken alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
20. The first three applicants, namely, Ms Yavuz Nal, Ms Kaplantaş Karakoç and Ms Yazgan Occhetta claimed 10,000 euros (EUR), EUR 500,000 and EUR 5,000 in respect of non-pecuniary damage. The fourth applicant, Ms Aydın did not submit any just satisfaction claim.
21. The Government contested the claims.
22. In the circumstances of the present cases, the Court considers that the finding of a violation of Article 14 of the Convention, in conjunction with Article 8, constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see Ünal Tekeli, cited above, § 73).
B. Costs and expenses
23. The first three applicants, namely, Ms Yavuz Nal, Ms Kaplantaş Karakoç and Ms Yazgan Occhetta claimed EUR 2,000, EUR 4,933 and 12,706.61 pounds sterling (GBP) in respect of costs and expenses. The fourth applicant, Ms Aydın did not submit any claim for costs and expenses.
24. The Government contested the claims.
25. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads to each of the first three applicants. Regarding application no. 49731/11, the Court considers that there is no call to award her any sum on that account.
C. Default interest
26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 14 of the Convention in conjunction with Article 8;
4. Holds that it is unnecessary to consider the application under Article 8 of the Convention taken alone;
5. Holds the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;
6. Holds
(a) that the respondent State is to pay each of the first three applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 13 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
11736/09
11/02/2009
Senem YAVUZ NAL
02/09/1976
İstanbul
Oya AYDIN GÖKTAŞ
On 21 March 2007 the applicant initiated proceedings before the Istanbul Civil Court of General Jurisdiction. Her request was rejected on 14 June 2007. On 25 March 2008 the Court of Cassation upheld the judgment. On 10 July 2008 the applicant’s rectification request was further rejected by the Court of Cassation. The latter decision was delivered to the applicant on 11 August 2008.
592/11
05/11/2010
Zeycan KAPLANTAŞ KARAKOÇ
04/07/1977
Istanbul
Habibe YILMAZ KAYAR
On 17 July 2008 the applicant initiated proceedings before the Bakırköy Family Court. Her request was rejected on 20 January 2009. The final decision was delivered on 7 June 2010.
47028/11
18/05/2011
Zeynep Damla YAZGAN OCCHETTA
16/06/1972
Abbiategrasso, Italy
Richard STEIN
On 26 April 2010 the applicant initiated proceedings before the Kadıköy Family Court. Her request was rejected on 23 November 2010. On an unspecified date, the Court of Cassation upheld the case.
49731/11
12/05/2011
Oya AYDIN
03/08/1970
Ankara
Filiz AYDIN
On 23 March 2006 the applicant initiated proceedings before the Ankara Civil Court of First Instance. Her request was dismissed on 27 September 2007. On 17 January 2011 the Court of Cassation upheld the judgment.
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