Hayriye Özdemir Başvurusu

Hayriye Özdemir Başvurusu

Hayriye Özdemir, Application No: 2013/3434, 25 June 2015 [Child’s Surname – Article 20 of the Constitution – Violation – Retrial]

A) Facts

The applicant filed a lawsuit for changing the surname of her child, whose right of custody was given to her, into her surname “Özdemir” instead of that of her former husband. The first instance court accepted the request by giving reference to the judgement of the Constitutional Court numbered Reg. 2010/119, Judg. 2011/165 and dated 8 December 2011, in which the phrase “in cases of annulment of marriage or divorce, the child shall adopt the surname chose/to be chosen by father even if right of custody was given to mother” under Article 4(2) of the Law no. 2525 on Surname dated 21 June 1934 was annulled. However, this decision was appealed and the Court of Appeal reversed the decision due to other legislative provisions. Upon that decision of the Court of Appeal, the applicant applied to the Constitutional Court claiming that her rights under Article 20 of the Constitution is violated.

B) Judgment and Reasoning of the Court

The Constitutional Court made it clear at the outset that even if the right to name is protected under Article 17 of the Constitution; as the surname of the child in common is related to the right of custody and exercise of powers it grants, it is a legal issue which must be dealt under the scope of Article 20. In its analysis, the Court stated that the decision of the Court of Appeal which results in dismissing the applicant’s request interferes with the right to respect for family life. It further came to the conclusion that, in consideration of Article 13 of the Constitution, there was no legal certainty both as the provision forming the basis of the decision, which states that “The child holds the surname of family if the mother and father are married. However, if the mother holds two surnames due to her previous marriage, then the child holds her maiden surname” does not provide a specific regulation on determining child’s surname and as it appears that different legal interpretations arose in judicial proceedings on this issue, and therefore, Article 20 of the Constitution has been violated, and ordered a retrial.

C) Significance of the Judgment

This judgement is noteworthy as it is related to a claim towards changing the surname of a child who is under the custody of the mother and the Constitutional Court’s analysis being made not under Article 17, but Article 20. Another aspect deserving attention is that it cited to Article 23(4) of the International Covenant on Civil and Political Rights which is ratified by Turkey on 4 June 2003; and Article 16(1)(g) of the Convention on the Elimination of All Forms of Discrimination Against Women.