Gülsim Genç petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Genç’s petition accordingly. Genç appealed to the court of appeals, which affirmed the court of first instance’s dismissal. Genç then filed an application to the Court. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Genç asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention. The Court repeatedly referenced the application by Sevim Akat Eşki, which is an indication that similar future rulings may result.
Women and Justice: Keywords
Domestic Case Law
Application by Sevim Akat Eşki Constitutional Court (2013)
The applicant petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Eşki’s petition accordingly. Eşki then filed an individual application to the Court asserting discrimination and other violations. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Eşki asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention.
Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836 Constitutional Court of Turkey (2015)
The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.
International Case Law
LEVENTOĞLU ABDULKADİROĞLU v. TURKEY European Court of Human Rights (2013)
The case concerned the complaint by a woman that, under Turkish law, she was not allowed to keep just her maiden name in official documents after getting married, whereas married men kept their surname. The Court held that this difference in treatment on grounds of sex between persons in an analogous situation had no objective and reasonable justification. Accordingly, the obligation imposed on married women to bear their husband’s surname – even if they could put their maiden name in front of it – had no objective and reasonable justification, in breach of Article 8 in conjunction with Article 14.
TUNCER GÜNEŞ v. TURKEY European Court of Human Rights (2013)
The applicant, Gülizar Tuncer Güne?, is a Turkish national who was born in 1966 and lives in Istanbul (Turkey). The case concerned her complaint that she had not been allowed to keep just her maiden name after her marriage in March 2005. She claimed in particular that the fact that Turkish law allowed married men but not married women to use only their own surname after marriage amounted to discrimination based on sex. She relied in particular on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the Convention.