Nurcan Yolcu Başvurusu
Nurcan Yolcu, Application No: 2013/9880, 11 November 2015
The Applicant filed a lawsuit to change the surname of her child under her custody after she got divorced. The applicant relied on the judgment of the Constitutional Court numbered Reg. 2010/119, Judg. 2011/165 and dated 8 November 2011. The said judgment annulled the second paragraph of Article 4 of Law No. 2525, which provided that the father would choose the surname of the child in case of divorce. 2nd Court of First Instance of Isparta rejected the case by stating that the child should carry the surname of his father in accordance with Article 321 of the Law no. 4721 and that the change in custody on behalf of the mother would not change this rule.
B) Judgment and Reasoning of the Court
The Constitutional Court stated that the applicant’s request to replace the surname of the child under her custody with the applicant’s own surname was related to the parental rights and the powers affiliated with them. Accordingly, it examined the application under Article 20 of the Constitution (§ 30).
Considering that women and men have the same legal status with regard to the parental rights, the Court found a differential treatment on the ground of sex in the absence of the right for mother to determine surname of the child, while the same is recognized on behalf of father (§ 46). In the assessment of this treatment in terms of being objective and reasonable, the Court pointed that the court of instance had only relied on the related provision of law (§ 47). The Court then stated that similar requests were often raised in legal proceedings and examined the reasons expressed on the judgments given. According to the Court,
“Although both child and public have interest in the identification of membership to a family by carrying a surname and in the credibility and consistency of the state registers, the judicial authorities failed to explain how the determination of the surname by mother would negatively affect the aforementioned interest when compared with to the determination of the surname by father. In addition to this, due to the adaptability of custody due to changes, the relevant judicial authorities had previously established that it would not be possible to change the surname of a child until s/he attains the age of majority or unless the father changes his surname in accordance with Article 27 of Law no. 4721. That is to say, a change in the surname of the father during the marriage or following the end of the marriage would also cause a change in the surname of the child. Consequently, the reason stating that to grant an authority to change the surname of a child in parallel to the shift in parental rights would cause a deep and drastic trauma on the mental state of the child was not deemed as satisfactory.” (§ 49)
In conclusion, the Court ruled that Article 20 of the Constitution was violated in conjunction with Article 10.
C) Significance of the Judgment
The Nurcan Yolcu case is one of the first two judgements that examined the prohibition of discrimination in connection with the right to respect for the family life. (The other judgement was also given on the same date, see the Gülbu Özgüler judgment, Application No: 2013/7979, 11 November 2015). This leading judgement is determined for the first time that a legal inequality exists between divorced spouses to the detriment of women regarding the surname of the child. One of the positive and striking features of the judgement lies in the assessment of the judicial attitude not allowing the mother to determine the surname of the child. In this respect, the Constitutional Court not only considered the reasons given by the first instance court, but also the reasons for the other courts and the Court of Appeal, which had adjudicated on the same matter, and therefore pointed out a systematic judicial problem.