SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30206/04 – Kemal TAŞKIN v. Turkey
Application no. 37038/04 – Medeni ALPKAYA v. Turkey
Application no. 43681/04 – Abdülkadir FIRAT v. Turkey
Application no. 45376/04 – Doğan GENÇ v. Turkey
Application no. 12881/05 – Emin ANĞ v. Turkey
Application no. 28697/05 – Celalettin YÖYLER v. Turkey
Application no. 32797/05 – Emirali ŞİMŞEK v. Turkey
Application no. 45609/05 – Reşit SÜNBÜL v. Turkey
The European Court of Human Rights (Second Section), sitting on 27 May 2008 as a Chamber composed of:
Françoise Tulkens, President,
Antonella Mularoni,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on the dates indicated in the table below,
Having deliberated, decides as follows:
THE FACTS
The applicants are Turkish nationals and live in different cities in Turkey. The names of their representatives appear in the table below (see page 3).
The facts of the case, as submitted by the applicants, may be summarised as follows.
On various dates the applicants applied to the domestic courts for permission to change their names. They claimed that the fact that they were currently registered under names other than those by which they were known to their friends and relatives gave rise to difficulties in their daily lives. They reiterated their requests at hearings held before the domestic courts and demanded that the names or last names they used in their daily lives, and which contained the letters “X”, “Q” and “W”, should replace or be added to their existing names in the State register. They added that, after the amendment to the domestic legislation, decisions against the registration of Kurdish names such as “Mizgin” and “Rojda” had been quashed by the Court of Cassation and permission had subsequently been given for their registration. In this context, some of the applicants questioned the use of foreign letters by trade companies or for names of medicines, such as AXA Oyak or Taxotene respectively, and maintained, inter alia, that foreigners received work permits, and those who subsequently acquired Turkish citizenship through marriage or other means received identity cards, issued in their names irrespective of whether they contained the letters “X”, “Q” or “W”.
In application no. 45376/04, the İstanbul Civil Court issued a decision of non-jurisdiction at a hearing which, according to the applicant, was attended by members of the public and press for some of the time, and transmitted the case to the Beyoğlu Civil Court. During the hearing the court did not request a power of attorney from the representative of the opposite party and did not ask for the parties' opinion on the matter, as the public prosecutor did not object to its absence. The applicant appealed and the Court of Cassation upheld the decision of non-jurisdiction. Subsequently the applicant brought his complaint before the competent court.
The domestic courts rejected the applicants' requests, mainly on the ground that the Turkish alphabet did not contain the letters “X”, “Q” or “W”, and out of the need for the protection of public order. In application no. 45609/05 the domestic court agreed to add “Baver” instead of “Bawer”, which had initially been requested by the applicant.
Appeals by the applicants against those judgments were dismissed by the Court of Cassation on the dates indicated in the table below (see page 3).
Several articles on the issue were published in the media, one of which made a reference on 6 October 2005 to a statement made by the then Minister of the Interior, Abdülkadir Aksu, who, in response to a campaign inviting Kurdish families to change their names, said that the use of letters which were not in the Turkish alphabet would not be allowed.
B. Relevant domestic law and practice
Section 16 of former Law no. 1587 provided that newborn babies could not be given names that were incompatible with the national culture, customs, traditions and ethical principles or that impaired the public conscience.
The relevant paragraph was amended by Law no. 4928 on 15 July 2003; the words “national culture” and “customs, traditions” were removed. This Law was further replaced on 29 April 2006 by Law no. 5490 (the Law on Population Services).
Section 2 of Law no.1353 (Law on the Adoption and Implementation of the Turkish Alphabet) makes it a requirement to use the Turkish alphabet in all official State business.
Circular 2003/37, issued on 24 September 2003 by the Ministry of the Interior, provides that names that are not against moral conceptions, are not offensive to the public and are written in accordance with the Turkish alphabet will be in compliance with Law no. 1587.
The Turkish alphabet, which replaced the earlier Ottoman Turkish script, consists of twenty-nine letters. It is a variant of the Latin alphabet, excludes the letters Q, X and W and contains the letters Ç, Ğ, İ, ı, Ö, Ş and Ü.
APPLICATION NO., DATE OF LODGING AND
NAME OF REPRESENTATIVES
NAME OF APPLICANT AND CHANGE REQUESTED
DATE OF DECISION AND NAME OF FIRST INSTANCE COURT
DATE OF FINAL DECISION OF THE COURT OF CASSATION
DATE OF NOTIFICATION OF DECISION OF THE COURT OF CASSATION OR ITS SUBMISSION TO THE REGISTRY
30206/04
28.7.2004
A. Demirtaş, R. Yalçındağ, S. Demirtaş
Kemal Taşkın
to
Dilxwaz Taşkın
6.4.2004
Diyarbakır Civil Court
24.6 2004
5.7.2004
37038/04
20.7.2004
A. Demirtaş, S. Demirtaş, M. Erbey, R. Yalçındağ
Medeni Alpkaya
to
Medeni Xoşewist
25.2.2004
Diyarbakır Civil Court
8.6.2004
5.11.2004
43681/04
8.9.2004
H. Akay
Abdülkadir Fırat
to
Berxwedan Fırat
26.2.2004
Ceylanpınar Civil Court
17.6.2004
30.6.2004
APPLICATION NO., DATE OF LODGING AND
NAME OF REPRESENTATIVES
NAME OF APPLICANT AND CHANGE REQUESTED
DATE OF DECISION AND NAME OF FIRST INSTANCE COURT
DATE OF FINAL DECISION OF THE COURT OF CASSATION
DATE OF NOTIFICATION OF DECISION OF THE COURT OF CASSATION OR ITS SUBMISSION TO THE REGISTRY
45376/04
8.10.2004 (concerning Articles 6 and 14)
18.1.2006 (concerning Articles 8 and 14)
R. Doğan, Ş. Turan, Y. Aydın
Doğan Genç
to
Ciwan Genç
6.11.2003
İstanbul Civil Court
(concerning Articles 6 and 14)
18.1.2005
Beyoğlu Civil Court
(concerning Articles 8 and 14)
18.3.2004
(concerning Article 6)
30.6.2005
(concerning Articles 8
and 14)
13.4.2004
(concerning Article 6)
27.7.2005
(concerning Articles 8 and 14)
32797/05
3.9.2005
M.N. Eldem
Emir Ali Şimşek
to
Berxwedan Emir Ali Şimşek
20.5.2004
Ankara Civil Court
8.2.2005
4.3.2005
45609/05
9.12.2005
M.N. Eldem
Reşit Sünbül
to
Bawer Reşit Sünbül
10.12.2004
Ankara Civil Court
9.5.2005
13.6.2005
12881/05
19.3.2005
M. Erbil
Emin Anğ
to
Berkxwedan Anğ
14.11.2003
Bağcılar Civil Court
20.9.2004
Not specified
28697/05
16.7.2005
R. Doğan
Celalettin Yöyler
to
Yekta Xweşbin
18.8.2004
Küçükçekmece Civil Court
28.12.2004
17.1.2005
COMPLAINTS
1. All the applicants, except in application no. 43681/04, complained under Articles 8 and 14 of the Convention that the refusal of the authorities to register the names they used in their daily lives had amounted to a violation of their right to respect for their private and family life. Furthermore, they claimed that they had been the object of discrimination, as names which contained the letters “X”, “Q” and“W” were being used by private companies as well as by persons who had formerly acquired Turkish citizenship.
2. In application no. 43681/04 the applicant complained under Article 10 of the Convention that the refusal of the authorities to change his name in the State register had been in breach of his freedom of expression. The applicant added, under Article 14 of the Convention, that he had been discriminated against on account of his Kurdish origin. The applicant further alleged that the authorities' reasoning in refusing his demand, namely, the protection of public order, constituted a breach of Article 18 of the Convention.
3. The following specific complaints were made in the applications cited below in addition to the above mentioned complaints under Articles 8 and 14:
Application no. 45376/04
Referring to the proceedings concerning the non-jurisdiction decision of the İstanbul Assize Court, the applicant complained under Article 6 of the Convention that he had not been afforded a fair and public hearing on the grounds that the press and public had been excluded from the hearing during which non-jurisdiction decision was declared, that the court had declared its decision of non-jurisdiction without asking for the opinions of both parties, that the representative of the opposite party had not been requested to submit a power of attorney and that the Court of Cassation's decision had lacked reasoning.
Applications nos. 32797/05 and 45609/05
Relying on Article 6 of the Convention, the applicants complained that the statement of the Minister of the Interior in response to the ongoing campaign for the right to change names, which had also been covered by the media, had prevented a fair hearing. They added that the Court of Cassation's decision lacked reasoning.
In application no. 32797/05, the applicant further alleged that the domestic court had not collected the evidence he requested, which infringed the equality of arms principle.
The applicants asserted under Article 13 of the Convention that the remedy provided under Turkish law with respect to name changes had been ineffective.
Application no. 12881/05
The applicant complained under Articles 9 and 10 of the Convention that the refusal of the authorities to change his name in the State register had infringed his freedom of thought and freedom of expression respectively.
THE LAW
1. In view of the similarity of the applications, the Court finds it appropriate to join them.
2. The applicants, apart from in application no. 43681/04, asserted under Article 8 of the Convention that the refusal of the domestic authorities to change their names in the State register on the ground that the names they had chosen contained letters that did not exist in the Turkish alphabet had infringed their right to private and family life.
In applications nos. 43681/04, 12881/05 and 45609/05 the applicants contended before the Court that their right to freedom of thought and freedom of expression under Articles 9 and 10 of the Convention had been breached.
Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and in the light of its case-law (see Johansson v. Finland, no. 10163/02, ECHR 2007‑...), the Court considers that the applicants' complaints fall to be examined under Article 8 of the Convention.
All the applicants also maintained under Article 14 of the Convention that they had been discriminated against on grounds of race or ethnic origin in the enjoyment of their rights guaranteed by Article 8.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of those complaints, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applications to the respondent Government.
3. The applicants in applications nos. 45376/04, 32797/05 and 45609/05 asserted under Article 6 of the Convention that they had not been afforded a fair hearing by an independent impartial tribunal. In particular, the applicant in application no. 45376/04 complained that:
– the court had reached its decision of non-jurisdiction without asking for the opinions of both parties;
– that the representative of the opposite party had not been requested to submit a power of attorney; and
– that the hearing during which the İstanbul Civil Court issued its non-jurisdiction decision had been attended for some of the time by the public and the press, but that they had later been barred from the hearing room.
The applicants in applications nos. 32797/05 and 45609/05 claimed that the statements of the Minister of the Interior on the issue, which had been covered by the press, had prevented a fair hearing. In addition to the above, all three applicants alleged that the domestic courts had not dealt with the arguments they had adduced and had issued decisions that lacked reasoning.
The Court recalls at the outset its “fourth instance” doctrine (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28‑29, ECHR 1999‑II). The Court further notes that Article 6 of the Convention does not require a court, when rejecting an appeal with reference to the reasoning of the lower court, to give detailed reasons for its decision (see Erçıkdı and Others v. Turkey (dec.), no. 52782/99, 31 March 2005).
The Court observes that no decision was taken by the first-instance court in application no. 45376/04 to exclude the press and the public from the hearing in question. As regards the statements of the Minister of the Interior concerning the issue, the Court holds that the applicants in applications nos. 32797/05 and 45609/05 have failed to show how the press coverage affected the fairness of the trial or had any impact on the proceedings. The Court further notes that, in all three applications, the first-instance courts' judgments explain the facts, the parties' submissions, the evidence and the courts' interpretations, as well as the legal provisions applied.
In view of the above, the Court finds that this part of the applications does not disclose any appearance of a violation of the Convention and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. In applications nos. 43681/04, 32797/05 and 45609/05, the applicants contended, inter alia, that the refusal of the authorities to replace their officially registered names in the State register with the names they had chosen also amounted to a violation of their rights under Articles 13 and 18 of the Convention. However, an examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the applications is also to be rejected as being manifestly-ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants' complaints concerning Articles 8 and 14 of the Convention;
Declares the remainder of the applications inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy