Murat Atılgan, Application No: 2013/9047, 7 May 2015 [Personal Relationship with Child – Article 20 of the Constitution (Right to Respect for Private and Family Life) – Violation – Retrial]

A) Facts

In the case, the court of first instance decided that the applicant can establish personal relationship with his child who is under the custody of the mother, while allowing the child to stay in the applicant’s house on certain days. The Court of Appeal upheld the decision with a revision, ruling that the child shall meet his father on the first and third Saturdays of every month between 10.00-17.00, and second days of the religious holidays between 10.00-17.00; considering that, due to the age, mental and physical development of the child, it is more convenient for him/her not to stay longer and overnight. Following this decision, the applicant applied to the Constitutional Court complaining that the personal relationship established between him and his child by the Court of Appeal is not sufficient, and his objections were not taken into account; therefore, his rights under Articles 20, 36 and 41 of the Constitution have been violated.

B) Judgment and Reasoning of the Court

The Court firstly stated that the restrictions on the visitation right and personal relationship with the child amount to an intervention to the right to respect for private and family life. Upon establishing the existence of an intervention, the Court made an analysis based on Article 13 of the Constitution and came to the conclusion that the measures taken by the Court of Appeal pursued a legitimate aim of protecting the education, health and morals of the child as well as the rights and freedoms of parents and child in accordance with the detailed provisions related to guardianship and establishment of personal relations with child in common stipulated in Article 182 of the Law no. 4721; however, the discretion applied for personal relationship was not linked with facts and not sufficient in the decisions of the courts of instance, therefore it is found that a violation of right to respect for family life guaranteed under Article 20 of the Constitution has occurred. Based on the foregoing, the Court ordered a retrial.

C) Significance of the Judgment:

The judgement lists the obligations of the state in respect of right to respect for family life, by citing to the various decisions of European Court of Human Rights (ECtHR) (§§ 25-28). It is stated that although the positive obligations may change significantly on a case by case basis as there is no clear-cut definition for the concept of “respect”, the obligations to refrain from arbitrary intervention, to take measures for reunion of the family and to establish a regulatory judicial structure protecting rights of persons are at the core. Besides, it is noteworthy that the Court emphasized the advantages of judicial bodies which are directly in contact with the issue, in terms of upholding the child’s best interest (§ 43).