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FOURTH
SECTION
CASE OF OYA ATAMAN v. TURKEY
(Application
no. 47738/99)
JUDGMENT
STRASBOURG
22 May
2007
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 Oya Ataman v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47738/99) 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 Oya Ersoy [previously
Ataman] (“the applicant”), on 26 November 1998.
- The
applicant was represented by Mrs Y. Yeşilyurt Karakoç, a
lawyer practising in İstanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purpose of the
proceedings before the Court.
- The
applicant alleged that the refusal of the national authorities to
allow her and her husband to bear her maiden name as their family
name amounted to a violation of Articles 8 and 14 of the Convention.
- By
a decision of 21 March 2006
the Court declared the application admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in İstanbul.
- The
applicant is a lawyer practising in İstanbul.
- Following
her marriage to Hüseyin Ataman on 14 July 1995, the applicant,
whose maiden name was “Ersoy” prior to her marriage, had
to take her husband’s last name pursuant to Article 153 §
1 of the Civil Code.
- On
17 December 1996 the applicant filed an action for rectification of
her name before the Ankara Civil Court. She asked to keep her maiden
name and requested that her maiden name be adopted as the family
name, as also agreed by her husband. The applicant claimed that
Article 153 § 1 of the Civil Code contravened Articles 10 and 12
of the Turkish Constitution.
- On
14 May 1997 Law no. 4248 amended Article 153 of the Civil Code and
provided married women with the option of combining their maiden name
with that of their husband’s surname.
- On
3 June 1997 the Ankara Civil Court held that Article 153 § 1 did
not allow a married couple, even if they agreed, to bear the maiden
name of the woman as the family name. It found that such a provision
was contrary to Articles 12 and 17 of the Constitution. Accordingly,
considering that the claims of the applicant were well-founded, the
court decided to suspend the proceedings and transferred the
case-file to the Constitutional Court for examination of the
compatibility of Article 153 § 1 of the Civil Code with the
relevant provisions of the Constitution.
- On
21 October 1997 the Constitutional Court decided, unanimously, to
limit the examination of constitutionality to the first sentence of
Article 153 of the Civil Code which states: “Married women
shall bear their husband’s name”.
- On
29 September 1998 the Constitutional Court held by eight votes to
three that Article 153 of the Civil Code was compatible with Articles
10, 12 and 17 of the Constitution.
In
its decision, the court held, inter alia, the following:
“The rule according to which married women bear
their husband’s name derives from certain social realities and
is the result of the codification of certain customs that have formed
over centuries in Turkish society. According to the reasoning behind
family law, the purpose of the rule is to protect women, who are of a
more delicate nature than men, to strengthen family bonds, to nurture
the prosperity of the marriage, and to preclude bicephalous authority
within the same family.
For the sake of protecting family unity, the legislature
has recognised the primacy of the husband’s name over the
wife’s. Considerations of public interest and policy have been
decisive. Moreover, under the new provision women are now allowed to
keep their maiden name in front of their surname (...).
Furthermore, the contention that this provision
infringes Article 10 of the Constitution, which prohibits any
discrimination on the ground of sex, is not well founded either.
The principle of equality, within the meaning of Article 10 of the
Constitution, does not mean that everyone is subject to the same
rules of law. The special characteristics of each person or each
group of persons may reasonably justify the application of different
rules of law (...)”
- The
dissenting judges considered that Article 153 of the Civil Code
interfered with the woman’s right to protect and develop her
material and spiritual entity and that it was incompatible with
Article 17 of the Constitution.
- On
16 March 1999 the Ankara Civil Court adhered to the Constitutional
Court’s judgment and dismissed the case brought by the
applicant.
- On
15 November 2002 the decision of the Constitutional Court was
published in the Official Gazette of the Republic of Turkey.
- In
her post admissibility observations, the applicant informed the Court
that she had divorced on 30 April 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in the case
Ünal Tekeli v. Turkey, no. 29865/96, §§
14-15, ECHR 2004 ... (extracts).
THE LAW
- The
applicant complained that the refusal of the national authorities to
allow her and her husband to bear her maiden name as their family
name amounted to a violation of Articles 8 and 14 of the Convention.
Article
8 of the Convention provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government submitted that the applicant has ceased to be a victim of
a violation of the Convention on account of her divorce on 30 April
2003. Accordingly, the Government invited the Court to strike the
case out of its list of cases in accordance with Article 37 § 1
(c) of the Convention.
- The
applicant asked the Court to rule on the merits claiming that she
remained a victim of a violation of Articles 8 and 14 of the
Convention. In this respect, she submitted, in particular, that she
had to change her surname upon marriage and after divorce and that,
taking into account her profession, this meant that she had to
constantly reintroduce herself.
- The
Court observes that since the applicant gave a clear indication that
she intended to pursue her application, sub-paragraph (a) of
Article 37 § 1 is not applicable (see Pisano
v. Italy [GC] (striking out), no. 36732/97, § 41,
24 October 2002). It further notes that the matter cannot be
considered to have been resolved within the meaning of Article 37 §
1 (b) of the Convention, since, even if the circumstances directly
complained of by the applicant no longer prevail, the effects of a
possible violation of the Convention on account of the circumstances
of the present case have not been redressed by the domestic
authorities (see Ohlen v. Denmark (striking out), no.
63214/00, § 26, 24 February 2005).
- In
the circumstances of the present case therefore, the Court must
ascertain whether the new fact brought to its attention following its
decision on the admissibility of the application - namely the divorce
of the applicant on 30 April 2003 - may lead it to conclude that it
is no longer justified to continue the examination of the
application, and that the application may consequently be struck out
of its list of cases in accordance with Article 37 § 1
(c) of the Convention, which provides:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- The
Court reiterates that it enjoys a wide discretion in identifying
grounds capable of being relied upon in striking out an application
on this basis, it being understood, however, that such grounds must
reside in the particular circumstances of each case (see Association
SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01,
§ 37, ECHR 2006 ... and the cases cited therein).
- In
the instant case, the applicant’s complaint concerns her
inability, due to domestic law, to use her maiden name as the family
name of the couple. However, in the meantime, it appears that the
applicant divorced on 30 April 2003-a fact which she failed to
mention until her post admissibility observations dated 24 May
2006 notwithstanding the terms of Rule 47 § 6 of the Rules of
Court according to which applicants are required to keep the Court
informed of developments relevant to their application. Having regard
to the applicant’s divorce on 30 April 2003, the Court finds
that the matter complained of no longer concerns a live issue.
- In
these circumstances, the Court concludes that it is no longer
justified to continue the examination of the application within the
meaning of Article 37 § 1 (c) of the Convention. Furthermore,
the Court finds no reasons of a general character, as defined in
Article 37 § 1 in fine, which would require the
examination of the application by virtue of that Article.
- Accordingly,
the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out
of the list.
Done in English, and notified in writing on 22 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
