FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47738/99 by Oya ATAMAN against Turkey

The European Court of Human Rights (Fourth Section), sitting on 1 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr R. Türmen , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 26 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Oya Ataman, is a Turkish national, who was born in 1970 and lives in Istanbul. She is a lawyer. She is represented before the Court by Mr Ilke Çandırbay, a lawyer practising in Istanbul.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

Following her marriage to Hüseyin Ataman on 14 July 1995, the applicant whose maiden name was “Ersoy” prior to marriage, had to take her husband's last name in accordance with Article 153 § 1 of the Civil Code.

On 17 December 1996 the applicant, together with her husband, filed a case before the Ankara Civil Court with a request to keep her maiden name and to use this name as their family name, as also agreed by her husband. The applicant claimed that Article 153 § 1 of the Civil Code contravened Articles 10 and 12 of the Turkish Constitution.

On 14 May 1997 the relevant Article was amended by Law no. 4248. The amendment brought the possibility of the married woman to keep her maiden name before her husband's surname.

On 3 June 1997 the Ankara Civil Court, considering that the claims of the applicant was well-founded, decided to suspend the proceedings and sent the case file to the Constitutional Court for examination of compatibility of Article 153 § 1 with the relevant provisions of the Constitution.

On 29 September 1998 the Constitutional Court, considering that the legislators had opted for the pre-eminence of the surname of one of the parties in order to preserve the unity of the family, held by eight votes to three that the impugned Article of the Civil Code was compatible with Articles 10, 12 and 17 of the Convention. The dissenting judges considered that the impugned Article interfered with the woman's the right to protect and develop her material and spiritual entity and therefore was incompatible with Article 17 of the Convention.

On 16 March 1999 the Ankara Civil Court adhered to the Constitutional Court's above judgment and dismissed the applicant's case.

B. Relevant domestic law

1. The  Constitution

Article 10

“All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.”

Article 12

“Everyone possesses inherent fundamental rights and freedoms which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his or her family, and other individuals.”

Article 17

“Everyone has the right to life and the right to protect and develop his material and spiritual entity...”

2. Article 153 § 1 of the Civil Code (Law no. 743 of 17 February 1926) as it was at the time of the events

“By marrying, the woman adopts the name of the husband.”

3. Article 153 § 1 of the Civil Code as amended by the Law no. 4248 of 14 May 1997

“By marrying, the woman adopts the name of the husband. However, following the marriage, by submitting a petition to the marriage officer or to the birth registry, the woman can use her previous surname before her husband's name. The woman who was previously using two names can benefit from this right only for one of these two names.”

COMPLAINTS

The applicant complains that the authorities refused her and her husband use of her maiden name as the family name since the domestic law did not provide for the adoption of the maiden name of the wife as the family name. The applicant invokes Articles 8 and 14 of the Convention and Article 5 of Protocol No. 7.

THE LAW

1. Under Articles 8 and 14 of the Convention the applicant complains that the authorities refused her and her husband the use of her maiden name as their family name.

The Court considers that it cannot on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this to the respondent Government.

2. The applicant complains under Article 5 of Protocol No. 7 that the authorities refused her and her husband the right to adopt her maiden name as their family name.

The Court considers that this part of the application is incompatible rationae personae as the respondent Government is not a party to the Protocol No. 7 and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the refusal of the authorities to adopt the applicant's maiden name as the family name of the couple;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas bratza Registrar President