In the last decades, there has been a notable decline in the number of countries in which women have to replace their surnames with their husbands once they get married. Turkey places itself in a unique position among other countries. Although women’s right to keep their surname was acknowledged by the Turkish Court of Cassation six and a half years ago, no legislation was adopted to abolish the provision obliging women to take their husband’s surname, namely Article 187 of the Turkish Civil Code. This article examines the Turkish Court of Cassation judgment dated 30 September 2015 and discusses whether women in Turkey actually have a right to choose their family names.
Facts of the Decision on Women’s Surname
The plaintiff, H. Yılmaz Y., filed a lawsuit to remove her husband’s surname that she received after marriage. Ankara 11th Family Court accepted the plaintiff’s claims and ruled that she could remove her husband’s surname and, instead, take her family surname.
The defendant, the civil registry office, appealed the case. In its decision, the 2nd Civil Chamber of the Turkish Court of Cassation found valid the claims of the civil registry office. The 2nd Civil Chamber of the Turkish Court of Cassation based its decision on a Turkish Constitutional Court decision. In its judgment dated 29 September 1998, Turkish Constitutional Court rejected an application to nullify Article 187 of the Turkish Civil Code that regulates that a married woman would use her husband’s surname.
The plaintiff submitted Article 90 of the Turkish Constitution, which states: “In the case due to differences in provisions on the same matter, there is a conflict between international conventions, duly put into effect, concerning fundamental rights and freedoms and the laws, the provisions of international agreements shall prevail.” and submitted that the 2nd Civil Chamber must decide accordingly with the European Court of Human Rights (“ECtHR”) jurisprudence, which rules that Article 8 of the European Convention of Human Rights (“European Convention”) applies to a married woman’s right to keep her surname after marriage and not take her husband’s.
However, the 2nd Civil Chamber rejected these claims, stating that the European Convention does not contain an explicit provision regarding the surname of married women. Therefore, there is no conflict between an international agreement and laws. The 2nd Chamber stated that ECtHR’s Tekeli/Turkey decision, in which the ECtHR decided that Turkey violated its obligations under the European Convention of Human Rights because it did not allow the plaintiff to keep her surname and not take her husband’s, cannot be considered as a relevant case-law. The primary source of this violation was a legislative act, the 2nd Chamber argued. That ECtHR case-law must be applied not by courts but by Turkish Parliament, which must abolish the law and replace it with a new one, according to the 2nd Chamber.
As such, the 2nd Chamber decided that Article 187 of the Turkish Civil Code must be implemented. Otherwise, it would violate public order and the general principle adopted by the Turkish civil law of family unity and integrity over the husband’s surname. Thus, the 2nd Chamber overruled the case. After the Ankara 11th Family Court received the 2nd Chamber’s judgment, it resisted its previous decision. Therefore, the dispute was brought before the General Assembly of the Civil Chambers of the Turkish Court of Cassation to resolve the issue between the two courts.
Summary of the Decision
The dispute consists of two points according to the Turkish Cassation Court General Assembly: (1) whether a binding effect can be attributed to the European Convention, despite the Constitutional Court decision, (2) whether courts can ignore Article 187 of the Turkish Civil Code.
1. The General Assembly stated that since the concept of “private life” was broadly interpreted by the ECtHR, not only privacy but also the development of the individual’s personality and self-realization are considered within the scope of the right. According to the General Assembly, the individual’s personal inviolability, bodily and spiritual existence included in Article 17 of the Turkish Constitution should also be understood to encompass Article 8 of the ECHR.
In addition to the right to private life, the prohibition of discrimination regulated in the European Convention, Article 14, was also examined in the decision. The General Assembly stated that different treatment without an objective and reasonable motive violates the prohibition of discrimination. It also noted that the objective and reasonable motive should be evaluated according to the principles of a democratic society.
The General Assembly stated that the plaintiff was treated separately from her male spouse regarding her surname in the family and that this was not justified reasonably and objectively. Accordingly, switching to a system not based on the husband’s surname is a change that could create difficulties in terms of keeping registry records. Still, according to the Court, it would also be reasonable to expect the society to suffer some distress to ensure that individuals live with dignity, according to the name they choose.
2. Regarding whether Article 187 of the Turkish Civil Code could be ignored, the General Assembly stated that the provision of article 90 of the Constitution brought a hierarchy between treaties and laws regarding fundamental rights and freedoms. For this reason, it concluded that in the situation where the two conflict, instead of the Turkish Civil Code, the provisions of an international treaty, namely Article 8 and Article 14 of the European Convention, must be applied. According to the Court, this must be seen as a tacit abolition rule. As a result, The General Assembly of the Civil Chambers of the Turkish Court of Cassation upheld the decision of the Ankara 11th Family Court to resist.
So, Why is This Right So Essential?
The duty to take the surname of the husband regardless of women’s consent for the sake of family unity and integrity prevents women’s autonomy and self-realization. In the judgment, for instance, the plaintiff is a research assistant in a university. If she gives up her surname after marriage and takes the surname of her husband, her academic recognition could decrease (for example, if the surname in her existing articles is different, it may affect her academic success and recognition). If she prefers to use her husband’s surname along with her family name, she is obliged to share the information that she is “married” with the entire academic community: a piece of information, we may never be exposed to in the case of a male academic.
Further, this problem is not only experienced by women from a specific community. All women who get married in Turkey are forced to renounce their surnames, which are a reflection of their personality, personal history, and recognition, without their consent, from the day they get married. To give an example, many married women in social media use their family names, instead of their full formal names to keep in touch with their old friends and relatives. Moreover, despite the principle of equality adopted by the Turkish Constitution, the concept of man being the “head of the family” -so to say removed from the civil law-, continue to exist through the surname.
Some also advocate the opinion that the presence of more than one surname in the family will lead to confusion. “Can a family surname be obligatory by choosing only one surname, either the husband’s or the wife’s?” Such a discussion is definitely within the scope of the right to private life but not within the scope of the current discussion. The current discussion concerns the answer to the following question: “If a family surname is to be determined, why does it have to be the husband’s?”.
Is There a Legitimate Aim?
The Court of Cassation did not evaluate the violation of Article 8 alone in the decision, and therefore, the question “Can a family surname be obligatory by choosing only one surname, either the husband’s or the wife’s?” was not directly answered. Rather, the decision stated that the right to surname is within the right to private life and focused on whether there had been an interference with this right contrary to the prohibition of discrimination. Therefore, the decision did not directly examine whether there was a violation of the European Convention Article 8 but examined whether there was a violation of Article 14 in the context of Article 8.
As the Court of Cassation states that the surname is not important in ensuring family unity, it may be said, at first glance, that the Court of Cassation implied that there was no legitimate aim. Later, it reveals that keeping the surname of the woman before marriage may cause some problems in keeping the population records. It continues to state that this is a burden that society must bear. From this, it can be understood that the Court of Cassation considered keeping population records as a legitimate aim but concluded that the way to achieve this aim is not a proportional one and there is a misbalance between the interests of the individual and the interests of the society.
How to Interpret Human Rights Treaties and Article 90 of the Turkish Constitution
The 2nd Chamber stated that Article 90 of the Constitution could not be applied because there is no explicit provision in the European Convention regarding the surname of married women. Therefore, the Chamber stated that there was no conflict. Thus, the Turkish law must have been applied in the absence of a clear provision on the European Convention. On the contrary, the General Assembly reveals that there is a conflict between the law and the Convention and that the absence of a clear provision in the Convention cannot show that there is no conflict.
In fact, the first question is, does Article 8 of the European Convention necessarily use the exact wording of Article 187 of the Turkish Civil Code for us to decide that there is a conflict? In other words, should the Convention’s wording contain a completely parallel statement with the law at issue to accept eventually that there is a conflict? The second question that follows is how and to what extent can we interpret human rights conventions to include rights that are not found in the exact wording of its articles?
It is understood that the General Assembly implicitly answered “No” to the first question. Because the wording of Article 8 of the European Convention does not mention the surname or even the surname of the woman. Yet, it was still accepted by the General Assembly that there is a conflict between the Civil Code and European Convention, and it was stated that this conflict made Article 187 of the Civil Code inapplicable to the case, according to Article 90 of the Turkish Constitution. The General Assembly, for some reason, avoided answering the second question although an explanation could have substantially enriched the reasoning.
The dynamism of human rights can be one answer. The fact that the European Convention is a human rights treaty, and that the main purpose of this treaty is the effective recognition of human rights. t is vital to interpret Article 8 to include some rights that were not meant by the state parties’ will the moment they enter into this treaty. On one hand, no generation can make a fair human rights treaty that will define and limit human rights for other generations. On the other, it is also clear that the European Convention was not meant to define and limit human rights for other generations, anyway. It simply is not drafted in a casuistic way, which can easily be seen by looking at how abstract the provisions are drafted.
The principle of consent in international law can be another answer. To what extent the principle of consent in international law can be extended and how an issue that is not included in the European Convention can impose obligations on party states is a question that the General Assembly must have dealt with in its decision. The parties to the European Convention consented to the establishment of an international court (ECtHR) and the authority of this Court to interpret the Convention and to deliver binding judgments. These states have obviously estimated that the understanding of the law and of human rights may change. If not, they would not agree on a model in which judges to the ECtHR are appointed for only nine years.
The ratio legis of Article 90 can also answer the question. Article 90 aims to incorporate human rights developments into the legal regime and eliminate laws contrary to human rights while it authorized judges to ignore such laws. Neither the human rights treaties nor Article 90 can tolerate such a narrow interpretation.
For all these reasons, the 2nd Civil Chamber’s interpretation of Article 90 hugely narrows the provision. According to such an interpretation, there is only one scenario where we can apply Article 90. It is when a dystopian provision in a gloomy human rights treaty enacts that there is “no right to private life”. Any other provision is excluded from the scope of article 90 of the Constitution because they simply do not contain an explicit provision regarding the surname of married women.
The Court of Cassation Decided in favor of Women’s Right to Surname, Now What?
Turkey has undertaken to grant equal rights to women in various international law documents. With the new Turkish Civil Code, which came into force in 2001, women were finally accepted in the same position as men in terms of family representation, economic activities, family, and children; the article authorizing the male as the “head of the family” has been abolished. The possibility to take one’s own surname along with the husband’s surname was added to Article 187. The Court of Cassation gave its decision in 2015. Still, women have to sue their husbands to be able to use their surname and their surname only because of the registry offices’ practice against law.
The said Constitutional Court decision was from the year 2011, almost 11 years ago. Before that, there was a very similar decision dated 1998, almost 24 years ago. As Article 152(4) of the Turkish Constitution prohibits the submission of the same provision’s unconstitutionality for a 10-year period, the Turkish Constitutional Court cannot deal with the issue in a timely fashion. On 10 March 2021, this restriction was over. However, until today, there was no judgment published in the Official Gazette. Who knows, maybe the year 2022 would be the lucky year for women in Turkey to eventually enjoy their rights.
Image: Vicky Leta / Mashable
