SECOND SECTION
CASE OF
TUNCER GÜNEŞ v. TURKEY
(Application no.
26268/08)
JUDGMENT
STRASBOURG
3 September 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 Tuncer Güneş 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 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
26268/08) 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 Gülizar Tuncer Güneş
(“the applicant”), on 16 May 2008.
The applicant was represented by Ms K.
Doğru, lawyer practising in Istanbul. 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 1966 and lives in Istanbul.
On 30 March 2005 the applicant, who is a lawyer,
got married and took her husband’s surname pursuant to Article 187 of the
Turkish Civil Code. She, however, kept her maiden name in front of her husband’s
surname as provided for by the same provision.
On 9 May 2007 the applicant brought proceedings before
the Şişli Court of First Instance for permission to use only her
maiden name, “Tuncer”.
On 18 July 2007 the Şişli Court of
First Instance dismissed the applicant’s request on the ground that, under
Article 187 of the Turkish Civil Code, married women had to bear their husband’s
name throughout their marriage and were not entitled to use their maiden name
alone.
The applicant appealed. On 22 November 2007 the
Court of Cassation upheld the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Civil Code:
Article 187 of the Civil Code
“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 deed, 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 Constitution:
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 duly put into effect bear the
force of law. No appeal to the Constitutional Court shall be made with regard
to these agreements, on the grounds that they are unconstitutional.
In the case of a conflict
between international agreements in the area of fundamental rights and freedoms
duly put into effect and the domestic laws due to differences in provisions on
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 are set out in
the case Ünal Tekeli v. Turkey, no. 29865/96, §§ 17-31, ECHR 2004-X
(extracts).
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 amounted to a breach of Article 8 of the Convention. She also contended
that the fact that Turkish law allows married men to bear only their own
surname after marriage and not married women constituted discrimination on
grounds of sex and was incompatible with Article 14 of the Convention. The
applicant further submitted that the Turkish domestic
courts, by disregarding the Ünal Tekeli v. Turkey judgment (cited
above) given by the Court and failing to make the necessary
amendments to the domestic law, had breached her right to an effective remedy
under Article 13 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 own surname
after her marriage, whereas Turkish law allowed married men to bear their own
surname. She submitted that this resulted in discrimination on grounds of sex
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 business 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 in 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 fact or
argument 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 also 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.”
A. Damage
The applicant claimed 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested the claim.
. The
Court finds that the applicant must have suffered distress which cannot be compensated
for solely by the Court’s finding of a violation. Having regard to the nature
of the violation found and ruling on an equitable basis, it awards the
applicant EUR 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,030 for the legal
costs and EUR 169 for the expenses incurred before the domestic courts and
before the Court. In support of her submissions, the applicant submitted a
legal fee agreement signed by the applicant and her representatives and a
timesheet to the Court, showing that a total of thirty-five hours had been
spent by her legal representative in the case.
. The
Government considered the sum claimed to be excessive and unsupported by any
documentary evidence. They also invited the Court not to make an award in
respect of the costs and expenses incurred at the national level.
. In
response to the Government’s argument concerning the costs and expenses relating
to the proceedings at the national level, the Court reiterates that, if it
finds that there has been a violation of the Convention, it may award the
applicant the costs and expenses incurred before the domestic courts for the
prevention or redress of the violation (see Société Colas Est and
Others v. France, no. 37971/97, § 56, ECHR 2002-III). In the present case the applicant brought the substance of her
Convention rights to the attention of the national courts. The Court thus
considers that the applicant has a valid claim in respect of part of the costs
and expenses incurred at the national level.
. The
Court also observes that, contrary to the Government’s assertion, the applicant
did submit a legal fee agreement and a timesheet to the Court showing the hours spent by her lawyers on the case. It also
observes that such time sheets have been accepted by the Court as supporting
documents in a number of cases (see, inter alia, Beker v. Turkey, no. 27866/03, § 68, 24 March 2009)
. According
to the Court’s case-law, an applicant is entitled to the reimbursement of costs
and expenses only in so far as it has been shown that these have been actually
and necessarily incurred and are reasonable as to quantum. As regards the
lawyers’ fees, in view of the documents in its possession and the above
criteria, the Court considers it reasonable to award the applicant the sum of
EUR 3,030 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
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;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,030 (three thousand and thirty euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
