SECOND SECTION
CASE OF
LEVENTOĞLU ABDULKADİROĞLU v. TURKEY
(Application no.
7971/07)
JUDGMENT
STRASBOURG
28 May 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Leventoğlu Abdulkadiroğlu v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 30 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
7971/07) against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Ms Bahar Leventoğlu
Abdulkadiroğlu (“the applicant”), on 8 February 2007.
The applicant was represented by Mr B. Balpazarı, a lawyer practising in İzmir. The Turkish
Government (“the Government”) were represented by their Agent.
The applicant alleged,
in particular, that the refusal by the domestic courts to
allow her to bear only her maiden name unjustifiably interfered with her right
to respect for her private life under Article 8 of the Convention. She
claimed that the fact that Turkish law allowed married men but not married
women to bear their own surname after marriage constituted discrimination on
grounds of sex and was incompatible with Article 14 of the Convention.
On 22 October 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1972 and lives in İzmir.
Following her marriage to
Atila Abdulkadiroğlu on 6 July 1996, the applicant, whose surname was
“Leventoğlu” prior to her marriage, had to take her husband’s surname
pursuant to Article 153 of the Turkish Civil Code. As she was known by
her maiden name in her academic and professional life, she continued to use it;
however, she could not use it in any official documents.
An amendment to Article 153 of the Civil Code on
14 May 1997 meant that married women acquired the right to put their
maiden name in front of their husband’s surname. The applicant preferred not to
make use of that option because, in her view, the amendment in question did not
satisfy her request, which was to use her maiden name on its own.
Following the enactment of the new Civil Code on
22 November 2001, Article 187 was worded identically to the former
Article 153 (see “Relevant domestic law and practice” below).
On 26 September 2005 the applicant brought
proceedings before the İzmir Court of First Instance seeking permission to
use only her maiden name, Leventoğlu.
On 6 December 2005 the court dismissed the
applicant’s request on the grounds that, pursuant to Article 187 of the Civil
Code, married women had to bear their husband’s name throughout their marriage
and were not permitted to use their maiden name alone.
The applicant appealed against that judgment and
on 21 March 2006 it was upheld by the Court of Cassation. A request by the
applicant for the proceedings in her case to be reopened was further rejected
by the same court on 14 July 2006. That decision was served on the applicant on
11 August 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant provisions of the Civil Code read
as follows:
Article 153 of the former Civil Code (as in force until
14 May 1997)
“Married women shall bear their husband’s name. ... ”
Article 153 of the former Civil Code (as amended by Law
no. 4248 of 14 May 1997), now Article 187 of the new Civil Code enacted on 22
November 2001
“Married women shall bear their husband’s name. However, they
can make a written declaration to the Registrar of Births, Marriages and Deaths
on signing the marriage certificate, or at the Registry of Births, Marriages
and Deaths after the marriage, if they wish to keep their maiden name in front
of their surname ...”
The Turkish Constitution, in so far as relevant,
reads as follows:
Article
10
“All individuals shall be equal
before the law without any distinction based on language, race, colour, sex,
political opinion, philosophical belief, religion, membership of a religious
sect or other similar grounds.
Women and men shall have equal
rights. ....”
Article 90 (as amended by Law no. 5170 of 7 May 2004)
“... International agreements that
are duly in force shall be legally binding. Their constitutionality cannot be
challenged in the Constitutional Court.
In the case of a conflict
between international agreements in the area of fundamental rights and freedoms
that are duly in force and domestic laws on account of differences in
provisions concerning the same matter, the provisions of international
agreements shall prevail.”
. Following
the enactment of Article 187 of the Civil Code, three family courts raised an
objection with the Constitutional Court, arguing that the provision was
unconstitutional. In a decision of 10 March 2011 (E. 2009/85, K. 2011/49),
the Constitutional Court dismissed their objection.
III. RELEVANT INTERNATIONAL LAW
The relevant international law is set out in the
Court’s judgment in the case of Ünal Tekeli v. Turkey (no.
29865/96, §§ 17-31, ECHR 2004-X).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
The applicant complained that the national
authorities’ refusal to allow her to bear only her maiden name after her
marriage, despite the fact that she had submitted the Court’s judgment on the
same topic (Ünal Tekeli, cited above) to the domestic courts in support
of her request, had amounted to a breach of Articles 6, 8 and 13 of the
Convention. She further claimed that the fact that Turkish law allowed married
men but not married women to bear their own surname after marriage constituted sex
discrimination and was incompatible with Article 14 of the Convention.
. In
view of the nature of the allegations made, the Court considers it appropriate
to examine the case under Article 14 of the Convention taken together with
Article 8.
A. Admissibility
The Court notes that the complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
The applicant complained
that the authorities had refused to allow her to bear only her maiden name
after her marriage, whereas Turkish law allowed married men to bear their own
surname. She argued that this amounted to sex discrimination and was
incompatible with Article 8 taken together with Article 14 of the Convention.
The Government maintained
that the domestic courts were bound by Article 187 of the Civil Code and that
the applicant had not been discriminated against in her daily or professional life.
They further added that consultations were taking place on draft legislation to
bring Article 187 into line with the Convention and asked the Court to find
that there had been no violation.
The Court notes that in the case of Ünal
Tekeli, which raised issues similar to those in the present case, it
observed that this difference in treatment on grounds of sex between persons in
an analogous situation was a breach of Article 14 taken in conjunction with
Article 8 (ibid., §§ 55-69).
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any facts or
arguments capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court considers
that there has been a violation of Article 14 of the Convention in conjunction
with Article 8.
Having regard to that conclusion, the Court does
not consider it necessary to determine whether there has been a breach of
Article 8 taken separately.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
The applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call to award her
any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 14 of the Convention in conjunction with Article 8;
3. Holds that it is
unnecessary to consider the application under Article 8 of the Convention taken
alone.
Done in English, and notified in writing on 28 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi Registrar President
