Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36141/97

by Sophia Gudrun HANSEN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 April 1997 by

Sophia Gudrun HANSEN against Turkey and registered on 20 May 1997 under

file No. 36141/97 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1959, is an Icelandic citizen and

resident in Reykjavik. She is represented before the Commission by Mr

Hasip Kaplan, a lawyer practising in istanbul.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The applicant, who at the time was living with H.A. in Iceland,

gave birth to two daughters, V.A in 1981 and A.A. in 1982, both born

out of wedlock.

On 13 April 1984 the couple got married in Iceland.

On 13 April 1987 the applicant's husband, H.A., who was a Turkish

citizen, obtained Icelandic citizenship.

In 1990, the applicant's husband H.A. went to Turkey with his two

daughters for a holiday but never returned to Iceland.

The applicant applied to an Icelandic court to obtain a decree

of divorce and custody of her two daughters. On 11 January 1991 the

court ruled that the couple should live apart for one year before their

marriage could be dissolved. On 10 April 1992 the court decreed the

couple's divorce and granted the custody of the two daughters to the

applicant.

Proceedings concerning divorce and custody of the children:

On 25 October 1991 the applicant applied to the Bakirköy Civil

Court of General Jurisdiction for a decree of divorce and custody in

Turkey.

On 12 November 1992 the court declared the couple divorced and

granted the custody of the children to their father. The court also

granted the applicant visiting rights to her children during the month

of July each year.

The applicant appealed. On 23 February 1993 the Court of

Cassation quashed the judgment of 12 November 1992 on the ground that

the first instance court had not examined the couple's nationality and

the legality of their marriage in Iceland.

On 7 October 1993 the Bakirköy Civil Court of General

Jurisdiction to which the case had been referred, gave a judgment

identical to that of 12 November 1992.

The applicant again appealed. On 30 March 1994 the Joint Civil

Chambers of the Court of Cassation quashed the judgment of 7 October

1993 on the ground that the couple's nationality and the legality of

their marriage in Iceland according to Turkish law should be examined

further under the rules of conflict of laws.

The applicant's case was again referred back to the Bakirköy

Civil Court of General Jurisdiction where she withdrew her application

for divorce on the ground that there had been no legal marriage between

her and H.A. under Turkish law. She requested custody of her children,

who were illegitimate under Turkish civil law. On 20 April 1995 the

court dismissed the applicant's application for divorce.

Upon the applicant's appeal on 28 November 1995, the Court of

Cassation quashed the judgment of 20 April 1995. It stated that the

first instance court should have decided who had parental authority

over the illegitimate children.

On 13 June 1996 the Bakirköy Civil Court of General Jurisdiction,

after taking oral evidence from the children and other witnesses,

awarded the custody of the children to their father and granted the

applicant visiting rights from 1 July to 31 August each year.

On 13 November 1996 the applicant's appeal to the Court of

Cassation was rejected.

On 31 March 1997 the Court of Cassation dismissed the applicant's

request for rectification of the decision of 13 November 1996.

Proceedings concerning the enforcement of visiting rights:

On 12 March 1992 the Bakirköy Civil Court of General Jurisdiction

stated in an interim judgment that the applicant could visit her

children twice a month. However, the applicant has in fact been able

to see her children only twice, since H.A. has refused to comply with

the access arrangements specified in the court order.

The applicant filed various complaints. The Public Prosecutor in

Bakirköy started criminal proceedings against H.A. on the ground that

he had failed to obey the court order.

On 19 November 1994 the Bakirköy Criminal Court sentenced the

applicant's husband to three months and ten days' imprisonment for

disobeying the court order. The penalty was converted into a fine of

500,000 Turkish Lira.

On 12 July 1996 the Bakirköy Enforcement Judge granted the

applicant access rights to see her children. According to the order of

the court the applicant could see her children every weekend from

Friday 5 p.m. until Sunday 5 p.m. at her house in istanbul.

The applicant's husband again failed to comply with the court

order. Upon the applicant's complaints, the Bakirköy Public Prosecutor

started criminal proceedings. On 7 March 1997 H.A. was sentenced to

three months and 26 days' imprisonment.

COMPLAINTS

1. The applicant complains that the Turkish authorities did not

enforce her access to her children in accordance with their positive

obligation under Article 8 of the Convention. Although the court

granted her the right to see her children at the weekends, their father

refused to obey this order. He was charged with not obeying court

orders; however, this was not enough to force him to let the applicant

see her children. She further complains under Article 14 of the

Convention in conjunction with Article 8 that she was deprived of her

right to see her children as a result of discrimination, in particular

on the ground of her Catholicism and Icelandic nationality.

2. The applicant also complains under Article 6 para. 1 of the

Convention that the length of the civil proceedings exceeded the

reasonable time referred to in that paragraph.

3. She further submits under Article 6 para. 3 of the Convention

that her right to have the assistance of an interpreter was violated

as she could not understand or speak the language used in the court.

4. The applicant also alleges under Article 5 of Protocol No. 7 to

the Convention that the right of the spouses to equality in relations

with their children was violated since she could not have access to her

children.

THE LAW

1. The applicant invokes Article 8 (Art. 8) of the Convention. She

complains that her right to respect for her private and family life has

been breached. She complains that the national courts failed to

enforce her access to her children. She submits that the penalties

ordered to ensure compliance with the court orders were not sufficient

to force the applicant's husband to let the children see their mother.

She also complains under Article 14 (Art. 14) of the Convention

that she was subjected to this treatment as a result of discrimination

on the ground of her Catholicism and Icelandic nationality.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of these complaints to the

respondent Government.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the length of the civil proceedings exceeded the

reasonable time requirement.

The Commission notes that the period to be taken into

consideration began on 25 October 1991 when the proceedings for divorce

and custody were instituted. It ended on 31 March 1997 with the

rejection of the applicant's rectification demand.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the criteria laid down

in the established case-law, in particular the complexity of the case

and the conduct of the applicants and of the relevant authorities (Eur.

Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series

A no. 319, p. 20, para.59). Furthermore, the Convention organs make an

overall assessment of the length of proceedings in some cases (see e.g.

Eur. Court HR, Cifola v. Italy judgment of 27 February 1992, Series A

no. 231, p. 9, para. 14).

As regards the complexity of the case, the Commission notes that

the case was not a simple one. It concerned questions relating to the

citizenship of the parties and the legality of their marriage.

As regards the conduct of the applicant the Commission observes

that the applicant renounced her divorce claim after four years of

proceedings and asserted that there was no marriage under Turkish law.

This changed the nature of the dispute from an argument over custody

between divorced parents to a case concerning parental authority over

illegitimate children.

As regards the conduct of the authorities the Commission finds

no periods of inactivity attributable to the Turkish authorities. The

Commission notes that the first instance court delivered four judgments

on the applicant's case and it came before the Court of Cassation five

times including one for rectification. The courts delivered, in total,

nine judicial decisions in five years and five months. In these

circumstances and taking into account the particular features of the

case, the Commission finds that the proceedings at issue in the

present case did not exceed a reasonable time within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para 2

(Art. 27-2) of the Convention.

3. The applicant further complains that her right to the assistance

of an interpreter was violated since she neither spoke nor understood

the language spoken in the court. In this regard she invokes Article

6 para. 3 (Art. 6-3) of the Convention.

The Commission notes that the applicant's complaint relates to

civil proceedings and therefore, it should be considered in the light

of the general notion of a fair trial under Article 6 para. 1

(Art. 6-1) of the Convention.

However, the Commission further notes that in accordance with

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

In the present case, it has not been shown that the applicant or

her counsel requested at any stage of the proceedings before the

national courts that the applicant should have the assistance of an

interpreter.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies. Therefore, this part of the

application must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

4. The applicant also alleges that the right of spouses to equality

in their relations with their children, protected by Article 5 of

Protocol No. 7 (P7-5) to the Convention, was violated.

However, the Commission recalls that Turkey is not a party to

Protocol No. 7 to the Convention.

Accordingly, this complaint is incompatible ratione personae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) and must be rejected on this ground.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaints as to the length

of the civil proceedings, her right to assistance by an

interpreter and the right of spouses to equality in their

relations with their children;

DECIDES TO ADJOURN the remainder of the application,

M.T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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HANSEN v. TURKEY

HANSEN v. TURKEY

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