Press Release No: Individual Application 19/16
05.04.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF FATMA JULIA EKİNCİLER ON THE RIGHT TO FAMILY LIFE

On 17/2/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Fatma Julia EKİNCİLER (application no. 2013/2758) that there had been a breach of the right to family life guaranteed in Article 20 of the Constitution and the right to trial within a reasonable time guaranteed in Article 36 of the Constitution.

The Facts

The applicant was born in the United States of America (the USA) on 23/9/1970. According to the civil registry extracts, F.E., a Turkish citizen, who was notified by the applicant to be her biological father, (the testator) was married with S.E. who is a Turkish citizen, and they have three common children. The testator divorced from S.E. by the decision dated 29/6/1966 of the Maine Supreme Court in the USA and subsequently got married with a foreign citizen U.B.. However, the foreign court’s decision on his divorcement from S.E. was not recognized and approved, and therefore the testator still appears to be married with S.E.. Moreover, the marriage between U.B. and the testator was also terminated with divorcement.

In the content of the official testament dated 11/9/1975, the applicant stated that he had married with U.B. in the USA; and they had three common children, namely F.W.E. born in 1967, K.F.E. born in 1968 and the applicant Fatma Julia Ekinciler born on 23/9/1970; that he was still residing in America together with his wife and children; and that in case of his death, 1/4 shares of some of the immovable properties in Kayseri would belong to these persons. The action for the annulment of the testament which was brought by S.E. and her children born into her marriage with the testator was dismissed, and the dismissal decision became final upon being subject to certain remedies.  

After the testator had died in 1999, his wife S.E. and their common children obtained a certificate of inheritance in which the applicant was not included among the inheritors. In this certificate, the inheritors were S.E., the Turkish wife of the testator, and their common children.

The action brought by the applicant for cancellation of the certificate of inheritance was accepted by the decision of the relevant court dated 13/5/2010. The pourparties of all children of the testator, who were alive by the date of his death, including the applicant and his wife S.E. were re-determined. In the reasoning of the decision, it was specified that as the decision concerning the divorcement of the testator from S.E. had not been recognized before the authorities of the USA, it was not enforceable in the Turkish law; that therefore his marriage with U.B. was not valid according to the Turkish law; that accordingly, the children born as a result of this marriage including the applicant were out of wedlock. It was accordingly noted that as per Article 292 of the Law no. 743 which was in force at the date of his death, it was possible to establish the paternity relation only when the father acknowledged the child; that in this respect, the children born as a result of this marriage were acknowledged with the testament drawn up by the testator, and according to the result of the research conducted by the Directorate General of Civil Registration and Nationality in the course of the proceedings, it was observed that the children had acquired the Turkish citizenship upon establishment of paternity relation with their father and had been recorded in the civil registry.

Upon the appeal of the decision on annulment of the certificate of inheritance, the first instance court was quashed by the judgment of the 7th Civil Chamber of the Court of Cassation dated 17/2/2011. In the reasoning of the quashing judgment, it was specified that the heirship and the transfer of the inheritance must be determined according to the legislation which was in force at the date when the testator died; that in this scope, it was not possible for the applicant, who was born out of wedlock, to be acknowledged and it was not therefore possible for the applicant to be accepted as the testator’s inheritor; and that however, as it was possible to appoint as a testament beneficiary, it was possible to provide her with a certificate indicating that she was the testament beneficiary. The request for rectification of the judgment was dismissed by the 7th Criminal Chamber of the Court of Cassation; however it was specified in this judgment that although Article 292 of the Law no. 743 was relied on, the judgment in question was partially annulled by the judgment of the Constitutional Court dated 28/2/1991 and no. E.1990/15, K.1991/5. It was accordingly specified that it was thereby enabled that the children born as into a relationship between a father who was married and a mother who was not married could be acknowledged and the paternity relationship could be established; that the reasoning of the quashing judgment was not appropriate; however, given the fact that the applicant was not acknowledged by the testator or the fact that the paternity was not established between them through a court’s decision, the quashing judgment was accurate in terms of the conclusions reached therein.

In the course of the proceedings held following the quashing judgment, it was decided that the request for annulment of the certificate of inheritance and for re-determination of the heirship be dismissed; and that the applicant be provided with a certificate of testament beneficiary. In the reasoning of the decision, the justifications specified in the quashing judgment of the 7th Civil Chamber of the Court of Cassation dated 17/2/2011 were completely included. The decision became final after being subject to appellate review.

It was specified in the trial period specified above that it had been observed that as a result of the examination conducted by the Directorate General of Civil Registration and Citizenship Affairs upon the request of the applicant and her siblings born into a relation between the testator and U.B., the applicant and her siblings were Turkish citizens. During these proceedings, they were recorded in the state register upon the re-issuance of their birth certificate. The action brought by the testator’s wife S.E. and their common children for annulment of this act was dismissed by the decision of 10/10/2006. 

The Applicant’s Allegations

The applicant maintained that although she had been acknowledged by her father through a testament which was deemed valid and was not annulled by the court, the pourparties had not been distributed in accordance with the content of this testament; that upon the failure of recognition of the decision rendered by the state court of the USA and concerning the divorcement of the testator from his wife who was a Turkish citizen, the first marriage had been deemed as a valid marriage in Turkey, which would not pose an obstacle, in the Turkish law, for the testator’s declaration of acknowledgement to become effective; that despite this, the testator’s declaration of acknowledgement in the testament had not been accepted; that she had been thereby deprived of her rights arising from heirship relation and she had been subject to a treatment different than that of the other children.  She also alleged that the trial had not been concluded within a reasonable time and that her rights enshrined in Articles 10, 13, 20, 35 and 36 of the Constitution had been breached.                      

The Court’s Assessment

a. Alleged Violation of the Right to Family Life

The main relations in the family life are the ones between the male and female and the parents and the children. The civil marriage community is in principle secured within the scope of the family life, and the children born into marriage are per se deemed as a part of the marriage. In the present application, the subject-matter of the dispute is whether the legal relation which indicates the legal relationship established with the child and which amounts to the acknowledgement by the biological father before the competent authorities under the conditions set out in the relevant legislation that the child out of wedlock is descended from him has been established in the present incident or not. In this respect, it has been observed that the close personal relationship between the applicant understood to maintain her personal relation with the testator since her birth and the testator, which is of importance for the establishment of the family life, de facto exists.  Accordingly, the relationship between the applicant and the testator is sufficient for making an examination within the scope of the right to private life.

The problem experienced by the applicant is not related to discrimination with respect to the right of succession in respect of the children born into a marriage or born out of wedlock but to the failure of establishing a legal relationship and accordingly heirship link between the applicant and her testator as the inferior courts did not qualify the testator’s declaration in the testament as an acknowledgement. In case of establishment of such a link, it is obvious that there is any discrimination with respect to the right of succession in respect of the children born into a marriage or born out of wedlock neither in the Law no. 743 upon the amendment thereto following the annulment judgment of the Constitutional Court dated 11/9/1987 and no. E.1987/1, K.1987/18 nor in the Law no. 4721 which is still in force. Therefore, the issue which must be assessed in the present application is whether the guarantees in Article 20 of the Constitution has been regarded within the meaning of the interpretation of testator’s declaration in his testament by the inferior courts.

The State is rendered liable to take measures for protection of the family, especially the mother and the child, and it is prescribed that this liability should be performed without taking into consideration whether these children were born into a marriage or out of wedlock. The main element of the family life is the improvement of the family relationships normally and the right of the family members to maintain their relations thereby. In this respect, the obligation incumbent on the State is not restricted to refraining from an arbitrary interference with this right but primarily includes, in addition to this negative obligation, the positive obligations for ensuring effective respect for the family life. The positive obligations in question necessitate taking of measures capable of ensuring respect to the family life even in the sphere of interpersonal relations.

The resolution of the problem concerning the interpretation of the legislation within the scope of the assessment of the individual applications primarily falls under the jurisdiction and responsibility of the inferior courts. The role of the Constitutional Court is restricted with the establishment as to whether the interpretation of these rules is constitutional or not.   The duty of the Constitutional Court is not to substitute itself for the inferior courts and to personally assess the material facts and legal norms concerning the disputes in question but to monitor whether or not the inferior courts have acted within the framework of the discretionary power vested in them within the meaning of the constitutional norms. In this scope, the Constitutional Court is entitled to establish whether or not the inferior courts have protected the guarantees set out in Article 20 of the Constitution by means of ensuring the balance required to be set between the individual and the public interests in interpretation and implementation of the provisions concerning the family law and in this context the paternity.

The decisive issue in this respect is whether the State has established a fair balance within its own discretionary power between the competing interests of the individual and the public. The inferior courts are required to act in a manner which would ensure the effective enjoyment and protection of the right to family life. On the other hand, the Constitutional Court, which is entitled to assess whether the inferior courts have used their discretionary powers in a reasonable and prudential manner, is to examine whether the justifications set forth by the judicial authorities are relevant and sufficient. The inferior courts are therefore required to set forth their justifications of their decisions in a detailed manner which would ensure the effective enjoyment and protection of the right to family life.

It has been observed from the assessment of the impugned judicial process that in the decisions rendered by the inferior courts, it was generally specified that a child born as a result of adultery committed by married men and women cannot be acknowledged on the basis of Article 292 of the Law no. 743. In this respect, it has been revealed that the decisions included such justifications that the applicant was granted with the Turkish citizenship in 2005 and recorded in the civil registry independently and not under the testator’s civil registry section; that as the testator was officially married in Turkey on the date when the applicant was born, it was not possible for the applicant to be acknowledged and accordingly accepted as the testator’s inheritor in pursuance of Article 292 of the Law no. 743; that however, as it was possible for her to be appointed as the testament beneficiary, she could be provided with a certificate indicating that she was a beneficiary of the testament. 

It has been revealed that the applicant was denied being included in the certificate of inheritance in the capacity of an inheritor and thereby her right of succession by means of establishing the relationship between the applicant and the testator due to the interpretation of the declaration in the testament by the inferior courts which are dealing with the action for the annulment of the certificate of inheritance and which would decide whether the applicant was acknowledged by the testator with testamentary disposition and thereby the relationship by affinity between the testator and the applicant; and that the conclusions of these decisions have an influence on the applicant’s right to family life.

In respect of the present application, it is possible for a married man to acknowledge his child born out of wedlock in pursuance of both the provisions of the Law no. 743, which was in force as of 24/9/1999 when the testament became effective, and the provisions of the Law no. 4721 which is still in force. In the relevant testament, it was explicitly specified by the testator that the applicant and her two siblings were born into his relationship with U.B. Even in the case when the declaration in question is required to be interpreted by the judicial authorities, making such an interpretation by taking into consideration the date when the testament was drawn up and which corresponds to approximately forty years before the decision date does not seem effective for materialization of the guarantees with respect to the right to family life.  Moreover, it is remarkable that the applicant was recorded in the civil registry after the declaration in the testament had been taken into consideration by the relevant administration and the applicant was acknowledged to gain the Turkish citizenship; and that the action brought for the annulment of the administrative act in question had been dismissed as the testator’s declaration had been deemed as an acknowledgement and found sufficient for authentication of the relation between the applicant and the testator.

In disputes concerning the paternity and the legal consequences thereof, which bear a significant public interest for being related to public order, the public authorities have a wide margin of appreciation. Given the requirements of establishment of the individual’s family bonds with the public interest specified in the use of margin of appreciation in question and of setting a fair balance by means of taking into consideration the legal interests such as right of succession and the liability incumbent on the judicial authorities to set forth a relevant and sufficient justification concerning the margin of appreciation in question, it has been concluded in respect of the present application that the interpretation which is not also compatible with the provisions of the legislation in force does not comply with the right to family life and precludes maintenance of the family life in a normal manner.

In the light of these considerations, it has been held that there was a breach of the right to family life guaranteed in Article 20 of the Constitution.  

b. Alleged Violation of the Right to Trial within a Reasonable Time

In respect of the present application, it has been concluded that there was an unreasonable delay in the trial procedure starting on 21/11/2003 and ending on 13/2/2013 and thereby understood to last for over nine years in terms of an action urgent conclusion of which constitutes a significant interest for being concerning the relationship between the testator and the applicant and the applicant’s legal status in respect thereof.

For the above-mentioned reasons, it has been held that there was a breach of the applicant’s right to trial within a reasonable time guaranteed in Article 36 of the Constitution.

 

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

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