SECOND SECTION

DECISION

Application no . 22079/13 Tutku YURDAKUL ENGÄ°N against Turkey

The European Court of Human Rights (Second Section), sitting on 16 May 2017 as a Committee composed of:

Ledi Bianku , President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 7 March 2013,

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

1. The applicant, Ms Tutku Yurdakul Engin , is a Turkish national, who was born in 1975 and lives in Ankara. She was represented before the Court by Mr Ö. Öneren , a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

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

3. On 16 November 2009 the applicant initiated proceedings before the Ankara Family Court seeking permission to use only her maiden name, Yurdakul .

4. Her case was dismissed on 21 December 2012 on the ground that pursuant to Article 187 of the Civil Code married women had to bear their husband ’ s name throughout their marriage and were not permitted to use their maiden name alone.

B. Relevant domestic law

Article 17 of the Constitution

“Everyone has the right to life and to protect and develop his/her physical and spiritual existence.”

Article 148 of the Constitution

“1. The Constitutional Court shall examine the constitutionality, in respect of both form and substance of laws, decrees having the force of law and the Rules of the Grand National Assembly of Turkey, and decide on individual applications. (...)

3. Anyone may apply to the Constitutional Court if they consider that their fundamental rights and freedoms as guaranteed by the Constitution and the Convention and its protocols have been violated by public authorities. In order to make an application, all ordinary legal remedies must be exhausted.”

Article 187 of the Civil Code

“Married women shall bear their husband ’ s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage deed, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname ...”

5. Following the enactment of Article 187 of the Civil Code, three Family Courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional. In a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed the objection.

6. On 19 December 2013, 6 March 2014 and 16 April 2015 respectively; the Constitutional Court delivered three decisions on three individual applications which concerned the inability of the applicants to bear solely their maiden name following their marriage (Application nos. 2013/2187, 2013/4439 and 2014/5836). Referring to the Court ’ s judgments in the cases of Ãœnal Tekeli v. Turkey (no. 29865/96, ECHR 2004 ‑ X (extracts)) ; LeventoÄŸlu AbdulkadiroÄŸlu v. Turkey (no. 7971/07 , 28 May 2013) ; Tuncer GüneÅŸ v. Turkey (no. 26268/08, 3 September 2013) ; and Tanbay Tüten v. Turkey (no. 38249/09 , 10 December 2013), the Constitutional Court held that Article 187 of the Civil Code was in contradiction with the Convention. Recalling that pursuant to Article 90 of the Constitution, international treaties that were duly in force were legally binding and that in case of a conflict between the domestic law and the Convention and its Protocols, the latter should take precedence over domestic law, the Constitutional Court held that the fact that a married woman could not solely bear her maiden name constituted a breach of Article 17 of the Constitution.

COMPLAINTS

7. The applicant complained that the national authorities ’ refusal to allow her to bear only her maiden name after her marriage had amounted to a breach of Article 8 of the Convention. She further claimed that the fact that the Turkish law allows married men to bear their own surname after marriage, but not married women, constituted discrimination on grounds of sex and is incompatible with Article 14 of the Convention.

THE LAW

8. The Government maintained that the applicant had not exhausted domestic remedies. They alleged that as the final decision regarding the applicant ’ s complaints had been delivered on 21 December 2012, she could have applied to the Constitutional Court. In support of their claims, the Government referred to three decisions delivered by the Constitutional Court, dated 19 December 2013, 6 March 2014 and 16 April 2015 respectively, in which the Constitutional Court held that the national authorities ’ refusal to allow those applicants to bear only their maiden name after their marriage had amounted to a breach of Articles 8 and 14 of the Convention as well as Article 17 of the Constitution. Accordingly, the Government further stated that although the Constitutional Court had previously ruled on the constitutionality of Article 187 of Civil Code in a previous decision delivered on 10 March 2011, this fact had not prevented the Constitutional Court to hold a violation of Articles 8 and 14 of the Convention when examining individual applications lodged by members of the public against specific decisions taken in the application of that particular law.

9. The applicant contested that assertion.

10. Having examined the main aspects of the new remedy before the Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey ( dec. ), no. 10755/13, §§ 68-71, 30 April 2013).

11. In the present case, the final decision concerning the applicant ’ s complaint was delivered by the Ankara Family Court on 21 December 2012. Accordingly, it fell within the Constitutional Court ’ s temporal jurisdiction.

12. The Court further reiterates its conclusions in the case of Zihni v. Turkey (( dec. ), no. 59061/16, § 28, 29 November 2016). It observes that the fact that the Constitutional Court had already ruled on the constitutionality of Article 187 of the Civil Code, in the context of a challenge to constitutionality, had not prevented individuals from lodging appeals before that court against the specific decisions taken in application of the said provision. The Court observes that as a result of these individual applications, the Constitutional Court delivered three decisions on 19 December 2013, 6 March 2014 and 16 April 2015, respectively, and stated that the national authorities ’ refusal to allow them to bear only their maiden name after their marriage had amounted to a breach of Articles 8 and 14 of the Convention as well as Article 17 of the Constitution.

13. The Court further notes that there were no special circumstances in the present case which would dispense the applicant from the obligation to exhaust the domestic remedy before the Constitutional Court.

14. In view of the foregoing, concludes that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President