FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47738/99 
by Oya ATAMAN 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 21 March 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Türmen
 Mr R. Maruste
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 26 November 1998,

Having regard to the partial decision of 1 June 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Oya Ataman, is a Turkish national who was born in 1970 and lives in Istanbul. She is represented before the Court by Mr İ. Çandırbay, a lawyer practising in Istanbul.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a lawyer practising in Istanbul. 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 Article 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 above 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.

B.  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).

COMPLAINTS

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.

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.”

In view of the nature of the allegations made, the Court considers it appropriate to examine the case directly under Article 14 of the Convention taken together with Article 8.

A.  Government’s preliminary objections

The Goverment maintained, firstly, that the applicant was not a victim within the meaning of Article 34 of the Convention since the subject matter of the case concerned the refusal of the authorities to change her husband’s surname and that she had failed to demonstrate that she was, in any way, affected due to the rejection of that request by the authorities. They pointed out that pursuant to the Civil Code the applicant had the right to use her maiden surname. They further argued that the applicant had failed to comply with the six-month rule. In this regard they submitted that since the situation complained of flowed from domestic law the national courts were not in a position to accede to the applicant’s request and that accordingly, she should have lodged her application with the Court within six-months of the date of her marriage.

The applicant contested the arguments of the Government. She submitted, in particular, that the subject matter of the case did not concern the authorities’ refusal to change her husband’s surname but their refusal to allow her and her husband to adopt her maiden name as the family name. In this regard, she argued that the forced change of her name following marriage not only affected her professional activities but also prevented her, as an independent contemporary woman, to organise her own private and family life. She pointed out that, despite the consent of her husband, they were prevented from adopting her maiden name as the family name. In her opinion, this fact demonstrated the inequality between men and women in marriage under Turkish law. Finally, the applicant maintained that she had lodged her application with the Court within six months following the final domestic decision given in her case.

The Court observes, firstly, that the case concerns the refusal of the authorities to allow the married couple to adopt the maiden name of the applicant as their family name. The Court also notes that the case originated in an application by the applicant to rectify her name. The subject matter, therefore, concerned the applicant. Having regard to the concept of family which prevails in the Convention system (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, § 18), the Court considers that the refusal of the authorities, in the instant case, to allow the applicant and her husband to bear her maiden name as the family name must be considered to have affected the applicant, at least, in her non-professional activities (see Ünal Tekeli, cited above, § 35). In these circumstances, the applicant could legitimately claim to be a victim of the impugned decisions. This preliminary objection of the Government must therefore be rejected.

As to whether the applicant had complied with the six month rule, the Court reiterates that where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six-month time limit starts to run, in principle, from the date on which the act complained of took place or the date on which an applicant was directly affected by such an act. However, special considerations might apply in exceptional cases where the applicants first avail themselves of a domestic remedy and only at a later stage become aware of the circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware of these circumstances (see, in particular, Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000-III (extracts)).

In the instant case, the Court observes that the matter complained of was in conformity with the provisions of Article 153 of the Civil Code. However, the Court also notes that, following the applicant’s request, the Ankara Civil Court suspended the proceedings and transferred the case for examination to the Constitutional Court. The applicant lodged her application with the Court, within six months following the decision of the Constitutional Court. Therefore, there was a possibility that the domestic courts could have granted the applicant’s request and, even if the remedy may be regarded as offering only limited prospects of success, it was not a futile step. Accordingly, it had the effect at least of postponing the beginning of the six-month period (see, Ünal Tekeli, cited above, § 38). Consequently, the Court also dismisses the Government’s preliminary objections as regards the failure to comply with the six-month rule.

B.  Merits

The Government disputed the applicability of Articles 8 and 14 of the Convention in the present case. In this regard, the Government maintained that the present case was different from Burghartz, cited above and Stjerna v. Finland (judgment of 25 November 1994, Series A no. 299-B) since in those cases the applicants had complained about incidents which concerned their own private life whereas in the present case the applicant complained of the refusal of the authorities to change her husband’s name. They further referred to the dissenting opinions of Judges Vilhjalmsson, Pettiti and Valticos in Burghartz, cited above.

The Government maintained that the refusal of the authorities to allow the applicant to bear her maiden name as the family surname could not be considered as an interference in the exercise of her right to respect for her private and family life. In this regard, the Government referred to the Court’s case-law, in particular to Stjerna, cited above and G.M.B. and K.M v. Switzerland (no. 36797/97, (dec.), 27 September 2001). They further maintained that the applicant already had the right to use her maiden surname pursuant to the Turkish Civil Code and that the measure complained of had an effect on her husband rather than the applicant herself.

The Government pointed out that there was little common ground on the issue amongst member States and that therefore the respondent State had a wide margin of appreciation the matter. They submitted that, after the amendments to the Civil Code, there was no legal obstacle to the applicant’s use of her maiden name before her family name. The Government submitted that the Turkish legislature had chosen to require the use of the name of one of the spouses in order to preserve family unity. They contended that such legislation did not go beyond the margin of appreciation left to the domestic authorities.

The Government claimed that men who preferred to adopt their wife’s maiden name as the family name could also file an action for rectification of name before the civil courts pursuant to Article 27 of the Turkish Civil Code and that, therefore, the general rule obliging married women to bear their husband’s surname could not be regarded as disproportionate. Finally, they maintained that the difference of treatment in the present case was based on objective and reasonable grounds which prevented it from being discriminatory in any way.

The applicant did not submit any specific submissions on the merits.

The Court considers, in the light of the parties’ submissions that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar President

ATAMAN v. TURKEY DECISION


ATAMAN v. TURKEY DECISION