Legal summary
June 2023
Nurcan Bayraktar v. Türkiye - 27094/20
Judgment 27.6.2023 [Section II]
Article 8
Article 8-1
Respect for private life
Refusal to exempt the applicant, without her undergoing a medical examination to prove that she was not pregnant, from the 300-day waiting period imposed on divorced women wishing to remarry: violation
Article 14
Discrimination
Refusal to exempt the applicant, without her undergoing a medical examination to prove that she was not pregnant, from the 300-day waiting period imposed on divorced women wising to remarry: violation
Facts – Being required to observe the 300-day waiting period provided for by the Turkish Civil Code before remarrying after her divorce, the applicant brought proceedings before the Family Court seeking exemption from that requirement. As a condition for waiving that period, she was required to produce a medical certificate to the effect that she was not pregnant. Since she refused to undergo the required medical examination, her application was dismissed. Her appeals against that decision were unsuccessful.
Law –
Government’s preliminary objection (victim status): Admittedly, the applicant had failed to provide any evidence that she had had a concrete or prospective plan to marry at the relevant time or that she had actually remarried thereafter. Nevertheless, it was not for the Court to speculate as to whether she had serious prospects of remarrying when she had lodged her application. Thus, as the right to marry was closely linked to the right to respect for private life, marriage primarily came down to a purely personal decision taken by an individual in the subjective and changing circumstances of his or her private life. Nor was it relevant that the applicant had not remarried after the waiting period had expired.
The very fact that the applicant had, pursuant to the Civil Code, been subjected to a waiting period before being able to remarry and that it had been necessary, in order to have it waived, for her to bring proceedings specifically for that purpose before the domestic authorities, in the course of which it had been required of her that she produce a medical certificate to the effect that she was not pregnant, all solely for the reason that she belonged to the category of divorced women who might remarry, sufficed for her to have victim status.
The applicant had accordingly been directly affected by the legislation providing for the impugned waiting period and could thus claim to be a victim of the discrimination she alleged in the exercise of her right to respect for her private life and her right to marry.
Conclusion: preliminary objection dismissed.
Article 8:
The present case fell within the ambit of Article 8 since it concerned one of the most intimate aspects of the applicant’s private life as a woman.
The waiting period imposed on the applicant following her divorce and the authorities’ requirement that she undergo, on pain of having her application for the waiver of that period dismissed, a medical examination to verify that she was not pregnant constituted interference with her right to respect for her private life. Such interference had been in accordance with the law, namely the Civil Code, and had pursued the legitimate aims of protecting the rights and freedoms of others and preventing disorder.
If, as the domestic authorities had asserted, the principal aim of the waiting period and of making the waiver of this requirement conditional upon the woman’s not being pregnant was to determine accurately the biological parentage of a possible unborn child, then it was necessary to distinguish biological paternity from the legal presumption of paternity. While it was true that, in most legal systems, the legal father of a child born in wedlock was presumed to be the husband, a child’s biological father could nevertheless, regardless of whether the child was born in or out of wedlock, recognise or claim paternity of that child at any time upon presentation of scientific proof in support of his claim, in particular a DNA paternity test. Likewise, under the Civil Code, in the event that a woman who had just divorced had been pregnant and gave birth to a child during the waiting period before remarrying, such a situation could not have given rise to anything more than a presumption of paternity with regard to the ex-husband and would not necessarily have affected the determination of the biological father. In this sense, the goal of enabling the determination of biological paternity seemed obsolete in a modern society. Moreover, even assuming that the purpose of the waiting period had been to preserve the ex-husband’s presumption of paternity with regard to any child born in that period, it would still have been superfluous given that other legal avenues were available under current systems of law for recognising and determining paternity. In addition, the waiting period only commenced on the date on which the divorce decision became final whereas, in most cases, the spouses no longer lived together in practice as of the start of the divorce proceedings, which could sometimes last for years.
Furthermore, the question whether a woman was pregnant had to be regarded as closely tied to the intimacy of her private life, irrespective of whether or not she had recently divorced. Making a divorced woman’s ability to remarry, without observing the waiting period, conditional upon her producing a medical certificate to the effect that she was not pregnant amounted to violating that intimacy and placing her intimate private life, including her sex life, under the scrutiny of the authorities. The Family Court, however, did not appear to have taken into account the aspects of the case bearing on the applicant’s private life when it had weighed up the various interests at stake.
Lastly, the Court expressed its concern as to the assumptions underlying the findings of the Family Court, which implied that divorced women, owing to the particularities of their female biology, especially the role they might play as mothers and their capacity to give birth, had a duty to society to disclose any pregnancy before remarrying and should be burdened with the disadvantage of a waiting period for the sake of protecting the interests of a possible unborn child and those of other relevant parties. That assumption reflected a traditional view of female sexuality – as essentially being tied to the woman’s reproductive function – and disregarded its physical and psychological importance for her personal fulfilment.
Regard being had to the foregoing, the impugned interference had not met a pressing social need, had not been proportionate to the legitimate aims it had pursued and had not been justified on relevant and sufficient grounds. It had not therefore been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 14 in conjunction with Article 12: The Court had already recognised above that the requirement that the applicant observe a 300-day waiting period before remarrying following her divorce fell within the ambit of her right to marry. Consequently, Article 14 of the Convention, taken in conjunction with Article 12, applied in the present case.
The Court had observed in a previous case that only women could be treated differently on grounds of pregnancy and that, for this reason, such a difference in treatment would amount to direct discrimination on grounds of sex if it were not justified. That finding was valid for the present case in so far as the primary reason for the difference in treatment complained of by the applicant was, according to the domestic authorities, the possibility that a woman wishing to remarry following her divorce might be pregnant. The decision delivered in respect of the applicant could only have been taken in respect of a woman, since only women could be pregnant and, in any event, the relevant legislation only required women to observe the waiting period.
The Court had previously noted in the F. v. Switzerland case, which concerned a temporary prohibition on remarriage that had been imposed on the applicant as a civil sanction following his divorce, that such a waiting period no longer existed under the laws of other Contracting States, but that the fact that, at the end of a gradual evolution, a country found itself in an isolated position with regard to one aspect of its legislation did not necessarily imply that that aspect offended against the Convention, particularly in a field – matrimony – which was so closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about the family unit.
The Government’s submission to the effect that the aim of the obligation to observe the impugned waiting period was to determine the biological parentage of a possible unborn child and to prevent uncertainty in that regard rested on a traditional concept of the family as based on the official institution of marriage and did not necessarily reflect the way modern European societies had evolved. In those societies, a significant number of families were founded on forms of union other than civil marriage, for instance civil partnerships or non-marital cohabitation, and many children were even conceived out of wedlock or by anonymous sperm donation.
However, given the important and sensitive place that the family unit and marriage could have in the cultural traditions of certain societies, the Court was willing to accept that the public or the child in question might have an interest in easily ascertaining his or her biological parentage and in avoiding uncertainty in that respect. Working on the assumption that determining parentage constituted a legitimate aim in the pursuit of which the waiting period under dispute could be imposed on divorced women, the Court had to determine, taking into account the narrow margin of appreciation afforded to States with regard to unequal treatment on grounds of sex, whether the disputed measure had been necessary to achieve that aim.
In that regard, it sufficed to refer to the finding the Court had already arrived at under Article 8 as to the pointlessness and ineffectiveness, for the purpose of achieving the aforementioned aim, of applying a waiting period to divorced women and of requiring them to present the authorities with a medical certificate to the effect that they were not pregnant in order to have it waived. Consequently, that practice constituted direct discrimination on grounds of sex.
The sexist stereotypes on which the Family Court had relied in dismissing the applicant’s claim in the present case, such as the notion that women had a duty to society on account of their potential role as mother and their capacity to give birth, constituted a serious obstacle to achieving real, substantive, gender equality, which was one of the major goals of the member States of the Council of Europe. In addition, such considerations on the part of the domestic authorities also appeared to run counter to relevant international standards in matters of gender equality
Consequently, the impugned requirement constituted direct discrimination on grounds of sex that was not justified by the aim of preventing uncertainty as to the parentage of a possible unborn child.
In the light of the foregoing and in the circumstances of the case, the unequal treatment to which the applicant had been subjected on the grounds of her sex had been neither objectively justified nor necessary.
Conclusion: violation (unanimously).
Article 41: The finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained.
(See also F. v. Switzerland, 11329/85, 18 December 1987; Carvalho Pinto de Sousa Morais v. Portugal, 17484/15, 25 July 2017, Legal summary; Napotnik v. Romania, 33139/13, 20 October 2020, Legal summary; and Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly in its resolution 34/180 of 18 December 1979, which entered into force on 3 September 1981 and was ratified by the Türkiye on 20 December 1985; Concluding observations of the Committee on the Elimination of Discrimination against Women (CEDAW/C/TUR/CO/6) of the Committee on the Elimination of Discrimination against Women adopted in 12-30 July 2010 and p
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