Sevim Akat Eşki, Application No: 2013/2187, 19 December 2013 [Women’s Surname – Article 17(1) of the Turkish Constitution – Violation – Retrial]

A) Facts

The applicant, who is registered as lawyer at the İstanbul Bar Association, filed a claim to replace her marriage surname from “Akat Ekşi” to merely “Akat”. The first instance court applied to the Constitutional Court with a request of constitutional review of Article 187 of the Turkish Civil Code No. 4721 by arguing that the said Article is in breach of Articles 2, 10 and 41 of the Constitution, but this request was rejected by the judgement of the Constitutional Court numbered Reg. 2009/85, Judg. 2011/49 and dated 10 March 2011. After the dismissal decision of the first instance court, the applicant took her case to the Court of Appeal to no avail. Thereupon, the applicant applied to the Constitutional Court claiming a violation of the prohibition of gender discrimination and the right to private and family life guaranteed under the provisions in Articles 2, 10, 12, 17, 20, 41 and 90 of the Constitution as a result of the dismissal of her action requesting to use her maiden surname alone due to the challenges she faced in daily life.

B) Judgment and Reasoning of the Court

The Constitutional Court found that the rejection of the request to use maiden name alone by the administrative and judicial authorities constituted an interference with the right to personal inviolability, corporeal and spiritual existence defined in Article 17 of the Constitution and concluded that there is a violation since the legal provision asserted as the basis of the dismissal of the applicant’s request did not meet the legality principle listed under the criteria of guarantee set forth in Article 13. The paragraph 5 of Article 90 of the Constitution was considered as an “implicit repeal rule” and therefore seen as the legal basis of the violation of the principle of legality by the abovementioned legal provision. Moreover, it was stated that Article 8 of the European Convention on Human Rights (ECHR), Article 23(4) of the International Covenant on Civil and Political Rights (ICCPR) and Article 16(1)(g) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) should be taken into account as regards to the dispute in question.

“According to Article 90 paragraph 5, international agreements are a part for our legal system and has the same ranking as domestic laws. Again pursuant to the same paragraph, in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. This provision consists of an implicit repeal rule and eliminates the functionality of any legal provision conflicting with the international agreements concerning fundamental rights and freedoms. It is understood that the decision objected in this application was given in line with Article 187 of the Law No. 4721. However, in the light of the findings above, it is seen that the said article contradicts with the provisions of the Convention. Under these circumstances it is concluded that the trial courts authorised in that dispute take the provisions of the international agreements required to be applied pursuant to Article 90 of the Constitution into account rather than Article 187 of the Law no. 4721, which is conflict with the ECHR and other international human rights conventions” (§§ 44-45).

The Court has ordered a retrial.

C) Significance of the Judgment

The Sevim Akat Eşki judgment bears importance as being the first complaint within the individual application procedure on the usage of the maiden surname. The judgment is remarkable inasmuch as it interprets the paragraph 5 of Article 90 of the Constitution as an “implicit repeal rule” and allows it to overrule the national laws by international conventions without any reference to norm jurisprudence on women’s surname. Another striking point is that, on the basis the “principle of constitutional integrity”, Article 13 of the Constitution has become decisive in the limitation regime provided in paragraph 1 of Article 17.