AS TO THE ADMISSIBILITY OF
Application No. 36141/97
by Sophia Gudrun HANSEN
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 April 1997 by
Sophia Gudrun HANSEN against Turkey and registered on 20 May 1997 under
file No. 36141/97 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, who was born in 1959, is an Icelandic citizen and
resident in Reykjavik. She is represented before the Commission by Mr
Hasip Kaplan, a lawyer practising in istanbul.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant, who at the time was living with H.A. in Iceland,
gave birth to two daughters, V.A in 1981 and A.A. in 1982, both born
out of wedlock.
On 13 April 1984 the couple got married in Iceland.
On 13 April 1987 the applicant's husband, H.A., who was a Turkish
citizen, obtained Icelandic citizenship.
In 1990, the applicant's husband H.A. went to Turkey with his two
daughters for a holiday but never returned to Iceland.
The applicant applied to an Icelandic court to obtain a decree
of divorce and custody of her two daughters. On 11 January 1991 the
court ruled that the couple should live apart for one year before their
marriage could be dissolved. On 10 April 1992 the court decreed the
couple's divorce and granted the custody of the two daughters to the
applicant.
Proceedings concerning divorce and custody of the children:
On 25 October 1991 the applicant applied to the Bakirköy Civil
Court of General Jurisdiction for a decree of divorce and custody in
Turkey.
On 12 November 1992 the court declared the couple divorced and
granted the custody of the children to their father. The court also
granted the applicant visiting rights to her children during the month
of July each year.
The applicant appealed. On 23 February 1993 the Court of
Cassation quashed the judgment of 12 November 1992 on the ground that
the first instance court had not examined the couple's nationality and
the legality of their marriage in Iceland.
On 7 October 1993 the Bakirköy Civil Court of General
Jurisdiction to which the case had been referred, gave a judgment
identical to that of 12 November 1992.
The applicant again appealed. On 30 March 1994 the Joint Civil
Chambers of the Court of Cassation quashed the judgment of 7 October
1993 on the ground that the couple's nationality and the legality of
their marriage in Iceland according to Turkish law should be examined
further under the rules of conflict of laws.
The applicant's case was again referred back to the Bakirköy
Civil Court of General Jurisdiction where she withdrew her application
for divorce on the ground that there had been no legal marriage between
her and H.A. under Turkish law. She requested custody of her children,
who were illegitimate under Turkish civil law. On 20 April 1995 the
court dismissed the applicant's application for divorce.
Upon the applicant's appeal on 28 November 1995, the Court of
Cassation quashed the judgment of 20 April 1995. It stated that the
first instance court should have decided who had parental authority
over the illegitimate children.
On 13 June 1996 the Bakirköy Civil Court of General Jurisdiction,
after taking oral evidence from the children and other witnesses,
awarded the custody of the children to their father and granted the
applicant visiting rights from 1 July to 31 August each year.
On 13 November 1996 the applicant's appeal to the Court of
Cassation was rejected.
On 31 March 1997 the Court of Cassation dismissed the applicant's
request for rectification of the decision of 13 November 1996.
Proceedings concerning the enforcement of visiting rights:
On 12 March 1992 the Bakirköy Civil Court of General Jurisdiction
stated in an interim judgment that the applicant could visit her
children twice a month. However, the applicant has in fact been able
to see her children only twice, since H.A. has refused to comply with
the access arrangements specified in the court order.
The applicant filed various complaints. The Public Prosecutor in
Bakirköy started criminal proceedings against H.A. on the ground that
he had failed to obey the court order.
On 19 November 1994 the Bakirköy Criminal Court sentenced the
applicant's husband to three months and ten days' imprisonment for
disobeying the court order. The penalty was converted into a fine of
500,000 Turkish Lira.
On 12 July 1996 the Bakirköy Enforcement Judge granted the
applicant access rights to see her children. According to the order of
the court the applicant could see her children every weekend from
Friday 5 p.m. until Sunday 5 p.m. at her house in istanbul.
The applicant's husband again failed to comply with the court
order. Upon the applicant's complaints, the Bakirköy Public Prosecutor
started criminal proceedings. On 7 March 1997 H.A. was sentenced to
three months and 26 days' imprisonment.
COMPLAINTS
1. The applicant complains that the Turkish authorities did not
enforce her access to her children in accordance with their positive
obligation under Article 8 of the Convention. Although the court
granted her the right to see her children at the weekends, their father
refused to obey this order. He was charged with not obeying court
orders; however, this was not enough to force him to let the applicant
see her children. She further complains under Article 14 of the
Convention in conjunction with Article 8 that she was deprived of her
right to see her children as a result of discrimination, in particular
on the ground of her Catholicism and Icelandic nationality.
2. The applicant also complains under Article 6 para. 1 of the
Convention that the length of the civil proceedings exceeded the
reasonable time referred to in that paragraph.
3. She further submits under Article 6 para. 3 of the Convention
that her right to have the assistance of an interpreter was violated
as she could not understand or speak the language used in the court.
4. The applicant also alleges under Article 5 of Protocol No. 7 to
the Convention that the right of the spouses to equality in relations
with their children was violated since she could not have access to her
children.
THE LAW
1. The applicant invokes Article 8 (Art. 8) of the Convention. She
complains that her right to respect for her private and family life has
been breached. She complains that the national courts failed to
enforce her access to her children. She submits that the penalties
ordered to ensure compliance with the court orders were not sufficient
to force the applicant's husband to let the children see their mother.
She also complains under Article 14 (Art. 14) of the Convention
that she was subjected to this treatment as a result of discrimination
on the ground of her Catholicism and Icelandic nationality.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the length of the civil proceedings exceeded the
reasonable time requirement.
The Commission notes that the period to be taken into
consideration began on 25 October 1991 when the proceedings for divorce
and custody were instituted. It ended on 31 March 1997 with the
rejection of the applicant's rectification demand.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the established case-law, in particular the complexity of the case
and the conduct of the applicants and of the relevant authorities (Eur.
Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series
A no. 319, p. 20, para.59). Furthermore, the Convention organs make an
overall assessment of the length of proceedings in some cases (see e.g.
Eur. Court HR, Cifola v. Italy judgment of 27 February 1992, Series A
no. 231, p. 9, para. 14).
As regards the complexity of the case, the Commission notes that
the case was not a simple one. It concerned questions relating to the
citizenship of the parties and the legality of their marriage.
As regards the conduct of the applicant the Commission observes
that the applicant renounced her divorce claim after four years of
proceedings and asserted that there was no marriage under Turkish law.
This changed the nature of the dispute from an argument over custody
between divorced parents to a case concerning parental authority over
illegitimate children.
As regards the conduct of the authorities the Commission finds
no periods of inactivity attributable to the Turkish authorities. The
Commission notes that the first instance court delivered four judgments
on the applicant's case and it came before the Court of Cassation five
times including one for rectification. The courts delivered, in total,
nine judicial decisions in five years and five months. In these
circumstances and taking into account the particular features of the
case, the Commission finds that the proceedings at issue in the
present case did not exceed a reasonable time within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para 2
(Art. 27-2) of the Convention.
3. The applicant further complains that her right to the assistance
of an interpreter was violated since she neither spoke nor understood
the language spoken in the court. In this regard she invokes Article
6 para. 3 (Art. 6-3) of the Convention.
The Commission notes that the applicant's complaint relates to
civil proceedings and therefore, it should be considered in the light
of the general notion of a fair trial under Article 6 para. 1
(Art. 6-1) of the Convention.
However, the Commission further notes that in accordance with
Article 26 (Art. 26) of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
In the present case, it has not been shown that the applicant or
her counsel requested at any stage of the proceedings before the
national courts that the applicant should have the assistance of an
interpreter.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies. Therefore, this part of the
application must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
4. The applicant also alleges that the right of spouses to equality
in their relations with their children, protected by Article 5 of
Protocol No. 7 (P7-5) to the Convention, was violated.
However, the Commission recalls that Turkey is not a party to
Protocol No. 7 to the Convention.
Accordingly, this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) and must be rejected on this ground.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the applicant's complaints as to the length
of the civil proceedings, her right to assistance by an
interpreter and the right of spouses to equality in their
relations with their children;
DECIDES TO ADJOURN the remainder of the application,
M.T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy