Press Release Nr: Individual Application 14/15
11/11/2015

JUDGEMENT ON RIGHT TO RESPECT FOR FAMILY LIFE IN HAYRİYE ÖZDEMİR’S APPLICATION
(Click for full text of judgment)

1. The Second Section of the Constitutional Court in its meeting on 25/6/2015 held in its judgement on individual application of Hayriye Özdemir (App. No: 2013/3434) that the applicant’s right to respect for family life was violated as the court dismissed the case for changing the surname of the child whose right of custody was given to mother after the divorce case.

Facts

The applicant filed a case for changing the surname of her child, whose right of custody was given to her after the divorce case, into her own surname instead of that of her divorced husband.

The court of first instance accepted the case on 16/4/2012 (Judgment Nr.2012/56, Reg. Nr.2012/246) and the justifications of this judgment stated that the phrase “in cases of annulment of marriage or divorce, the child shall adopt the surname chosen/to be chosen by father even if right of custody was given to mother“ under paragraph two of Article 4 of the Law Nr. 2525 on Surname of 21/6/1934 was annulled by the Constitutional Court on 8/12/2011 (Judgment Nr. 2011/165, Reg. Nr. 2010/119) and the decision of annulment was published in the Official Gazette. The court stated that, therefore, there is justified grounds in the mother’s request for changing the child’s surname into her own surname.

The Court of Cassation quashed the judgment by stating that, under the provisions of Article 321 of Turkish Civil Code Nr. 4721, a child born in wedlock shall have the surname of the father (family), that the right of custody given to mother upon divorce or death shall not change the surname and that the child’s surname shall not change unless it is changed by a duly filed court judgment. After the decision quashing the judgment, the court of first instance dismissed the case.

Allegations

The applicant stated that the court dismissed the case for changing the surname of her child, whose right of custody was given to her after the divorce, into her own surname. She also stated that, although her requests were based on the decision of the Constitutional Court annulling the relevant part of Article 4 of Law Nr. 2525, this issue was not sufficiently responded in the courts’ judgments and that she was imposed civil fine upon rejection of her request for revision of decision. The applicant alleged that her right to a fair trial and right to respect for family life were violated.

The Court's Assessment

The Constitutional Court noted that right of custody is an institution which consists of the rights and obligations vested in the father and mother of the minor child for his/her care and custody. In this context, it constitutes a legal basis for the child’s care and education, legal representation, management of his/her assets and the protection of child’s interests The Court also noted that the applicant’s request to change the surname of the child whose right of custody was given to her, is a legal issue which must be considered under the scope of Article 20 of the Constitution as it is related to right of custody and the exercise of authority in this context.

The judgment of the Constitutional Court states that issues of gender equality and gender-based discrimination, including the right of custody and the exercise of powers related to such right, are included in various international legal documents on human rights. The relevant provision of Law on Surname Nr. 2525, which states the child shall adopt the surname chosen/to be chosen by father even if right of custody was given to mother in cases of annulment of marriage or divorce, was annulled by the Constitutional Court on 8/12/2011 finding it contrary to Article 10 and 41 of the Constitution. Besides, Turkish legal system provides for changing the name or surname on certain grounds and Article 27 of Law nr. 4721 states that changing the name may be requested on reasonable grounds.

The Constitutional Court concluded that dismissal of applicant’s case for changing the surname of the child whose right of custody was given to her constitutes an interference to the applicant’s right to respect for family life

The Court noted that the criterion “fundamental rights and freedoms may be restricted only by law” has an important role in constitutional adjudication and, in case of an interference to a right, the first question to be answered is whether there is a provision of law which authorizes such interference. The Court also noted that laws restricting fundamental rights and freedoms require a substantive content as well. The Court emphasized that the relevant legal regulation must be certain in terms of its contents, aim and scope and it must be clear enough so that those concerned can comprehend their legal status. The Court recalled that relevant regulation may, of course, provide a margin of appreciation to a certain extent to those implementing it. However, in order to provide an efficient protection of fundamental rights, a minimum level of certainty must be ensured with regards to the wording and interpretation of a law constituting the basis of an interference. In the Court’s opinion, it is possible to use concepts which may be defined through interpreting methods. However, if a uniform implementation is not ensured for the relevant legal regulation, this may be considered a sign of uncertainty.

The judgment emphasized that the duty of the Constitutional Court is limited to checking the constitutionality of such interpretation and implementation. The provision of law which was taken as the legal basis of the interference states that “The child holds the surname of family if the mother and father are married (…). However, if the mother holds two surnames due to her previous marriage, then the child holds her maiden surname.” The Court noted that this provision of law is made subject to cases similar to the present case by the parents, who are given the right of custody after divorce, and the lawfulness of the interference is widely discussed and different legal interpretations arose in those proceedings.

Consequently, considering that there is no clear regulation on the issue of changing child’s surname whose custody was given to mother after divorce and that there are different judicial decisions on this matter, the Court stated that the provision of law which was taken as the legal basis of the interference does not meet the criterion of certainty in the context of dismissing the applicant’s request to change the surname of the child under her custody. The Court ruled that the applicant’s right to respect for family life guaranteed under Article 20 of the Constitution has been violated.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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