FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36141/97 by Sophia Gudrun HANSEN against Turkey

The European Court of Human Rights (First Section), sitting on 19 June 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 April 1997 and registered on 20 May 1997,

Having regard to the Commission’s partial decision of 27 May 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Icelandic national, born in 1959 and living in Reykjavik. She is represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul.

A. The circumstances of the case

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

The applicant is the mother of two daughters, V.A who was born in 1981 and A.A who was born in 1982. At the time of their birth she was living in Iceland with Halil Al, a Turkish citizen. The children were born out of wedlock.

On 13 April 1984 the couple married in Iceland.

On 13 April 1987 Halil Al obtained Icelandic citizenship.

In 1990 Halil Al went to Turkey with his two daughters for a holiday. They 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 applicant custody of the two daughters.

Proceedings concerning divorce and custody of the children

On 25 October 1991 the applicant lodged an application with the Bakırköy Civil Court of General Jurisdiction ( Asliye Hukuk Mahkemesi ) in Istanbul. She requested a decree of divorce and custody of her daughters in Turkey.

At a hearing on 12 March 1992 V.A and A.A gave evidence to the court. They stated that they were happy being with their father and that they did not want to live with their mother.

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 during the month of July each year.

The applicant appealed. On 23 February 1993 the Court of Cassation quashed the decision of 12 November 1992 on the ground that the first instance court had not examined the nationality of the couple and had not established whether they had been married in accordance with Icelandic law.

On 7 October 1993 the Bakırköy Civil Court of General Jurisdiction held that it was unnecessary to consider whether the couple’s marriage had been in accordance with Icelandic law. The court further held that Halil Al had both Turkish and Icelandic nationality and, therefore, his nationality was not an issue in the present case.

The applicant appealed again. On 30 March 1994 the Joint Civil Chambers of the Court of Cassation ( Yargıtay Hukuk Genel Kurulu ) quashed the decision of 7 October 1993 on the ground that the first instance court had not established whether the couple had been married in accordance with Icelandic law. Furthermore, the first instance court had not examined the nationality of the couple. The Court of Cassation further stated that the first instance court could only decide on the custody of the children after having examined whether the couple had a legal marriage in Iceland. The Court of Cassation finally stated that the matter should be examined under the rules of conflict of laws.

The case was again transferred to the Bakırköy Civil Court of General Jurisdiction. At a hearing on 20 April 1995 the applicant withdrew her divorce request on the ground that there had been no legal marriage between her and Halil Al under Turkish law. She requested custody of her children and asked the court to consider this issue under the provisions of international law. She submitted that the Icelandic authorities had granted her a divorce decree from Halil Al.

Upon the applicant’s withdrawal the court decided to dismiss the applicant’s divorce request. The court also referred to its correspondence with the Ministry of Foreign Affairs which confirmed that Halil Al had Turkish and Icelandic citizenship and that the applicant had not obtained Turkish citizenship after their marriage. The court further stated that the couple had been married in accordance with Icelandic law. The court did not rule on the custody of the children since the applicant had withdrawn her divorce request.

On 28 November 1995, upon the applicant’s appeal, the Court of Cassation quashed the decision of 20 April 1995. It stated that the first instance court should have decided who had parental authority over the children since they had been registered as “children born out of wedlock” ( gayri sahih nesepli ) in the Turkish Register of Births, Deaths and Marriages ( nüfus sicili ).

On 13 June 1996 the Bakırköy Civil Court of General Jurisdiction, having regard to the evidence before it and to the testimonies of the children awarded the custody of the children to Halil Al and granted applicant visiting rights from 1 July to 31 August each year.

On 18 November 1996 the Court of Cassation upheld the decision of the Bakırköy Civil Court of General Jurisdiction dated 13 June 1996.

On 31 March 1997 the Court of Cassation rejected the applicant’s rectification request.

On 3 November 1997 the applicant lodged an application against Halil Al claiming that he had abused his authority as a guardian for nurture ( velayetin nezi davası ).

At a hearing on 5 May 1998 the children testified before the Bakırköy Civil Court of General Jurisdiction. V.A stated as follows:

“I always lived with my father. My father takes care of my sister and me. I refused to see my mother because I do not want to see her. I don’t sympathise with my mother because she did not show any interest or concern in my childhood. I am studying at a private school. I cannot disclose the school’s name for security reasons. I want to remain under the custody of my father. I do not accept my mother’s request. I am aware that it is a criminal offence to refuse to see my mother. In 1997, I met my mother upon the request of the police officer. I do not have any involvement in the Kadri cult”. 

A.A stated as follows:

“I have been living with my father since I was 8 years old. My sister V.A is also staying with me. My father has always fulfilled his paternal duties. My sister and I did not want to stay with our mother because we were not happy with her. She did not take care of us. I continue my studies at a private school. I am not going to tell the collage’s name. If I do, my mother might follow us. In 1992 and 1997, I willingly met with my mother. My mother pressurised me for the purpose of giving a testimony against my father in the proceedings before the Bakırköy 8 th Civil Court of General Jurisdiction.”    

Proceedings concerning the enforcement of access rights

On 12 March 1992 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant access rights to her children. Accordingly, the applicant could visit her children twice a month. However, in practice, the applicant was able to see her children only twice, after which Halil Al refused to comply with the access arrangements specified in the court order.

On 4 June 1992 Halil Al was before the Bakırköy Enforcement Officer. He stated that he would be present at his home in Istanbul with his daughters between 6 June 1992 and 6 September 1992 and that the family would be staying in Sivas for the summer holidays.

On an unspecified date Halil Al informed the Enforcement Office that he would be staying in Sivas until 4 October 1992 due to V.A’s illness.

On 12 November 1992 the Bakırköy Civil Court of General Jurisdiction granted the applicant access rights to her children according to which she could visit them every June for thirty days.

On 15 June 1993 Halil Al lodged an application with the office of the Bakırköy Enforcement Judge ( İcra Tetkik Mercii Hakimi ) requesting that the execution of the court order of 12 November 1992 be cancelled.

On 21 June 1993 the Bakırköy Enforcement Judge decided to cancel the enforcement of the court order having regard to the fact that the Court of Cassation had quashed the decision of 12 November 1992.

On 28 June 1993 the applicant lodged an application with the Bakırköy Civil Court of General Jurisdiction requesting the enforcement of the decision dated 12 November 1992.

On 30 June 1993 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant access rights to her children, according to which the children were to stay with her every weekend from Friday 5.00 p.m. to Sunday at 5.00 p.m.

On 2 July 1993, 8 July 1993, 9 July 1993, 10 July 1993, 16 July 1993, 28 July 1993, 1 August 1996, 6 August 1993, 20 August 1993, 3 September 1993 and 10 September 1993 Halil Al failed to comply with the court order. Mr Al was not present at his domicile in Istanbul on these particular dates.

The applicant filed various complaints. The Bakırköy public prosecutor initiated criminal proceedings against Halil Al on the ground that he had failed to obey the court order.

On 19 January 1994 the Bakırköy Criminal Court of First Instance ( Asliye Ceza Mahkemesi ) sentenced Halil Al to three months and ten days’ imprisonment. The penalty was converted into a fine of 500,000 Turkish Liras.

On 15 July 1994, 22 July 1994, 29 July 1994, 5 August 1994, 19 August 1994, 26 August 1994, 2 September 1994 and 9 September 1994 Halil Al again failed to comply with the court order. Mr Al was not present at his domicile in Istanbul on these particular dates.

On 16 September 1994 the enforcement officers forcibly entered Halil Al’s house. Halil Al told the officers that the children were not at home.

On 30 September 1994, 14 October 1994, 21 October 1994 and 25 November 1994 Halil Al persisted in not complying the court order.

On 10 October 1994 the Court of Cassation upheld the decision of the Bakırköy Criminal Court of First Instance dated 19 January 1994.

On 6 January 1995, 20 January 1995, 3 February 1995, 10 March 1995, 24 March 1995 and 7 April 1995 Halil Al again failed to comply with the court order. The children were not present at Mr Al’s domicile on these particular dates.

On 14 April 1995 the applicant arrived at Halil Al’s house in Istanbul accompanied by the enforcement officers in order to see her children. However, Halil Al said that the children were not at home but at school. He added that he did not know which school it was.

On 12 July 1996 the Bakırköy Enforcement Judge ( İcra Tetkik Mercii Hakimi ) 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.

On 12 July 1996 and 19 July 1996 the children were again not found at Halil Al’s domicile.

On 12 July 1996 Halil Al made a declaration at the Bakırköy Enforcement Office. He stated that V.A was in Erzurum and A.A was in Sivas on holiday and that the applicant could visit the children in those cities.

On 12 July 1996, 20 August 1996 and 11 September 1996 the applicant lodged three more criminal complaints with the office of the Bakırköy public prosecutor.

On 4 September 1996 the Bakırköy public prosecutor filed a bill of indictment with the Bakırköy Criminal Court of First Instance, accusing Halil Al of not complying with the court order.

On 13 September 1996, 20 September 1996, 5 October 1996, 18 October 1996, 26 October 1996, 1 November 1996, 8 November 1996, 15 November 1996, 22 November 1996 and 29 November 1996 the applicant’s efforts to see her children remained unsuccessful. The children were not at Halil Al’s domicile on these particular dates.

On 7 March 1997 the Bakırköy Criminal Court of First Instance sentenced Halil Al to three months and 26 days’ imprisonment for not complying with the court order.

On 21 August 1997 the applicant went to Divriği , Sivas , in order to meet with her children. Her lawyer, enforcement officers and police officers accompanied her. As soon as the children left their father they started shouting and expressed their reluctance to travel with their mother. They said that they did not want to see their mother anymore because she had never been a real mother to them. When the applicant’s lawyer insisted that the children should go in the car, they resisted. The applicant’s lawyer requested assistance from the police officers and asked if they would accompany them to Ankara. However, the police officers refused this request saying that they could escort them only to the border of Sivas province. Having regard to terrorist activity in the region the applicant’s lawyer declined to travel with the children to Ankara.

The applicant lodged another criminal complaint with the Bakırköy Criminal Court of First Instance. On 24 September 1997 the court acquitted Halil Al on the grounds that V.A and A.A refused to see their mother and thus there was no evidence to substantiate that Halil Al had failed to obey the court order.

On 13 January 1998, in the proceedings initiated by the Bakırköy public prosecutor on 4 September 1996, the Bakırköy Criminal Court of First Instance sentenced Halil Al to four months’ imprisonment. The penalty was converted into a fine of 1,200,000 Turkish Lira.

On 15 July 1998 the Bakırköy Criminal Court of First Instance again sentenced Halil Al to one month and five days’ imprisonment. The penalty was converted into a fine of 350,000 Turkish Lira.

By the letters dated 8 June 1998 and 8 July 1998 the Ministry of Justice requested the Bakırköy public prosecutor and the Divriği public prosecutor to take the necessary measures in order to facilitate the arrangements specified in the order of the Bakırköy Civil Court of General Jurisdiction.

On 27 August 1998 the applicant arrived in DivriÄŸi in order to meet with her daughters. However, her efforts remained futile. 

B. Relevant domestic law and practice

Rules on Conflict of Laws (Law no. 2675)

Article 12 - Marriage

“Matters related to capacity and conditions of marriage shall be subject to each party’s national law at the time of marriage. The form of marriage shall be subject to the place where the marriage was held. The marriages held in the consulates in accordance with the provisions of international agreements shall be valid. The general rules of marriage shall be subject to spouses’ common national law. In case the parties have different nationalities their common domicile law shall apply. In case the parties domiciled in different places Turkish law shall apply.”

Article 13 - Divorce and separation

“Matters related to grounds and provisions of divorce and separation shall be subject to spouses’ common national law. In case the parties have different nationalities their common domicile law shall apply. In case the parties domiciled in different places Turkish law shall apply.”

Article 17 - Children born out of wedlock

“Matters related to financial and personal relationship between the mother and the child shall be subject to the mother’s law. Matters related to financial and personal relationship between the father and the child shall be subject to the father’s law.”

Article 19 - Custody of the children after divorce

“Matters related to custody after divorce shall be subject to law which governs divorce.”

COMPLAINTS

The applicant complains that the Turkish authorities did not ensure her access to her children in accordance with their positive obligation under Article 8 of the Convention.

The applicant 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.

THE LAW

The applicant complains that the Turkish authorities did not guarantee her right of access to her children. She further complains 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. She invokes Articles 8 and 14 of the Convention.

A. The Government’s preliminary objection

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 of the Convention. The criminal proceedings against Halil Al concerning the abuse of custody rights are still pending before the national courts. Accordingly, the Court should declare the application inadmissible.

In reply, the applicant submits that her application mainly concerns the enforcement of the court decisions granting access rights to her children. She maintains that the criminal proceedings initiated against Halil Al were subsidiary in nature.  

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431 § 71).

However, the Court is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in the present t he case, the applicant did everything that could reasonably be expected of her to exhaust the national channels of redress (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, § 54).

The Court observes that the applicant lodged numerous complaints with the national authorities for the enforcement of the order of the Bakırköy Civil Court of General Jurisdiction. However, her efforts remained unsuccessful on account of Halil Al’s persistent refusal to comply with the court orders. Furthermore, the applicant lodged several criminal complaints with the office of the competent public prosecutor in order to facilitate the enforcement of her access rights. In view of the ineffectiveness of the various court decisions and enforcement orders the Court considers that the access arrangements in themselves failed to secure the applicant’s right of access to her children.

Against this background the Court concludes that the applicant did everything that could reasonably be expected of her to exhaust the national channels of redress.

The Court accordingly dismisses the Government’s objections.

B. Merits

1. Alleged violation of Article 8 of the Convention

The applicant submits that the Turkish authorities have failed to ensure access rights to her children despite her numerous attempts from 1992 to 1997. She maintains that the public prosecutor initiated eighteen different criminal proceedings against Halil Al. However, Halil Al persisted in not complying with the decisions.

According to the applicant her daughters were not allowed to continue their studies in a state school but in a religious school. However, she could never find out in which school her daughters were continuing their studies.

The applicant further alleges that her daughters were forced to live with their stepmother since Halil Al had married another woman. This situation has deeply affected her daughters’ healthy development.

The Government maintain in reply that the Turkish authorities did everything to ensure that the access right of the applicant be effective.

2. Alleged violation of Article 14 of the Convention in conjunction with Article 8

The applicant submits that she was intimated and attacked by the Islamic fundamentalists and nationalists during the proceedings, on the ground of her Catholicism and Icelandic nationality. She alleges that the authorities did not take any steps to prevent these attacks.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President