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SECOND
SECTION
CASE OF MUSTAFA AND ARMAĞAN AKIN v. TURKEY
(Application
no. 4694/03)
JUDGMENT
STRASBOURG
6 April
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Mustafa and Armağan Akın v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4694/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mr Mustafa Akın and
Mr Armağan Akın (“the applicants”), on 6
January 2003.
- The
applicants were represented by Ms Leyla Hülya Tuna, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged, in particular, that a domestic court decision,
which prevented the second applicant from seeing his younger sister,
had infringed their right to respect for their family life within the
meaning of Article 8 of the Convention.
- On
22 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1957 and 1988 respectively and live in
Ödemiş.
- On
30 September 1999 the first applicant's wife instituted divorce
proceedings and asked for the custody of their two children; Armağan
(the second applicant) and his younger sister Damla who was born in
1993.
- The
Ödemiş Civil Court of First Instance (“the Ödemiş
Court”) granted the couple's divorce on 23 June 2000. Having
regard to the “parties' incomes and the ages of the two
children”, the Ödemiş Court awarded custody of
Armağan to the first applicant and that of Damla to her mother.
It also decided that the parents would exchange the children between
1 and 15 February every year, during the month of July and
for a total period of four days during the two religious holidays.
- On
30 November 2000 the first applicant requested the Ödemiş
Court to grant an interim measure to the effect that he would have
both children one weekend and his ex-wife would have them the next.
This way, he argued, the children would not lose contact with each
other and he would have the opportunity to spend every other weekend
with both his children. This request was rejected on 19 December 2000
by the Ödemiş Court which considered that its decision
concerning the custody issue had been correct.
- The
appeal lodged by the applicant against the Ödemiş Court's
decision of 23 June 2000 was rejected by the Court of Cassation on
8 December 2000. A request made by the first applicant for a
rectification of that decision was rejected on 8 February 2001.
- On
11 September 2001 the first applicant brought a court case on behalf
of his son and on his own behalf against his ex-wife. He claimed that
although he and his son were living in the same town and very close
to his ex-wife and his daughter, the decision of the Ödemiş
Court had prevented the two children from seeing each other and him
from spending time with both his children. This, he claimed, was
causing irreversible psychological problems for the children. Even
when the children saw each other in the street they were prevented
from talking to each other by their mother. He requested that the
children be able to see each other every weekend.
He
also asked the court to order his ex-wife to pay maintenance to him
in respect of Armağan.
- The
Ödemiş Court refused the applicants' requests on
1 February 2002. It held that, although diligence had to be
shown to satisfy the needs of the parents and their children and to
improve the ties between them, ordering Damla to spend every weekend
with her father would mean a continual change of environment for her
and would confront her with variations in discipline.
- The
applicants appealed and referred in their appeal to a number of
decisions of the Court of Cassation. According to those decisions,
the applicable law and procedure required domestic courts to ensure
that access arrangements do not prevent the children of divorced
parents from seeing each other. The applicants maintained that
ensuring this was a matter for a court of law to consider of its own
motion. They also argued that the children's best interests should be
given paramount importance. They drew the Court of Cassation's
attention to the fact that the two siblings had not seen each other
for two years.
- The
appeal was rejected by the Court of Cassation on 29 April 2002
which considered that the Ödemiş Court had “adequately
examined the evidence available to it and that its conclusion had
been in accordance with the applicable legislation”. A
subsequent rectification request lodged by the applicants was
rejected on 15 July 2002. In their request for rectification the
applicants submitted that the two children had not seen each other
for almost three years and that their request for rectification was
their last chance of seeing each other.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the decision of the domestic court
preventing the two children from seeing each other infringed their
right to respect for their family life within the meaning of Article
8 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to respect for his
... family life,...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ...
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants argued that the domestic court's decision amounted to an
unjustified interference with their right to respect for their family
life, Moreover, in reaching their decisions the domestic court had
failed to observe and protect the best interests of the two children.
- The
Government were of the opinion that the decisions adopted by the
domestic courts had not prevented the two siblings from seeing each
other; as the children were living in the same neighbourhood, contact
was possible. In any event, if the applicants' requests had been
accepted by the domestic courts, Damla would have spent one weekend
with her mother and the next weekend with her father. This, in the
opinion of the Government, would have adversely affected her
development.
-
The Court considers at the outset that there can be no doubt that a
bond amounting to family life within the meaning of Article 8 §
1 of the Convention exists between the parents and the children born
from their marriage-based relationship, as is the case in the present
application. Such a natural family relationship is not terminated by
reason of the fact that the parents separate or divorce, as a result
of which the child ceases to live with one of its parents (see Cılız
v. the Netherlands, no. 29192/95, § 59, ECHR 2000 VIII
and the cases cited therein). Likewise, the Court considers that
family life within the meaning of the same provision also exists
between the second applicant Armağan and his sister Damla, with
whom he lived in the same house until the divorce of his parents in
2000 (see, inter alia, Olsson v. Sweden (no. 1),
24 March 1988, § 81, Series A no. 130). Noting, in any event,
that the existence of a family life in the instant case is not
disputed by the parties, the Court will proceed to examine whether
the applicants' right to respect for their family life has been
adequately protected.
- The
Court reiterates that the essential object of Article 8 is to protect
the individual against arbitrary action by the public authorities.
There are in addition positive obligations inherent in effective
“respect” for family life. However, the boundaries
between the State's positive and negative obligations under this
provision do not lend themselves to precise definition. The
applicable principles are, nonetheless, similar. In both contexts
regard must be had to the fair balance that has to be struck between
the competing interests and in both contexts the State enjoys a
certain margin of appreciation (see Tuquabo-Tekle and Others v.
the Netherlands, no. 60665/00, § 42, 1 December 2005).
- In
the present case the Court considers that the decision of the Ödemiş
Court separating the two siblings constituted an interference with
the applicants' right to respect for their family life. It not only
prevented the two siblings from seeing each other, but also made it
impossible for the first applicant to enjoy the company of both his
children at the same time. Having regard to the facts of the present
application, and in particular the fact that the domestic courts have
been requested on a number of occasions by the applicants to
reconsider their decisions, the Court deems it more appropriate to
examine whether the respondent State complied with its positive
obligation and whether its authorities acted with a view to
maintaining and developing the family ties.
- In
its examination the Court will take into account its case-law under
Article 8 of the Convention, which emphasises the authorities'
obligation to have regard to the best interests of the child (see
Maslov v. Austria [GC], no. 1638/03, § 82, 23
June 2008). Moreover, an assessment of the quality of the
decision-makıng process requires the Court to establish whether
the conclusions of the domestic authorities had a sufficient
evidentiary basis (including, as appropriate, statements by
witnesses, reports by competent authorities, psychological and other
expert assessments and medical notes) and whether the interested
parties, including the children themselves, were able to express
their views (see, for example, Havelka and Others v. the Czech
Republic, no. 23499/06, § 62, 21 June 2007; Haase
v. Germany, no. 11057/02, § 97, ECHR 2004 III
(extracts)).
- The
Court notes at the outset that the custody of the second applicant
and his younger sister was determined by the Ödemiş Court
of its own motion; neither parent had requested the judge to make
such a determination. In fact, the mother had asked the Ödemiş
Court for the custody of both children (see paragraph 6 above). The
Court is thus struck by the absence of reasoning justifying the
separation of the children.
- The
Government submitted that the decisions adopted by the domestic
courts had not prevented the two siblings from seeing each other
because the children were living in the same neighbourhood and it was
thus possible for them to keep in contact. The Court cannot accept
that argument and considers that maintaining the ties between the
children is too important to be left to the discretion and whim of
their parents. Indeed, it is not disputed by the Government that the
children were prevented by their mother from even speakıng to
each other when they saw each other in the street.
- On
two occasions the applicants made pertinent submissions to the Ödemiş
Court and argued that the access arrangements was rupturing the
family ties between them and Damla (see paragraphs 8 and 10). They
also submitted that the situation was causing irreversible
psychological problems for the children. The Ödemiş Court
was informed about the mother's uncooperative behaviour.
Nevertheless, it concluded that regulating contact between the
applicants and Damla in the way sought by the applicants would mean
“a continual change of environment for her and would confront
her with variations in discipline”.
- The
Court cannot concur with that conclusion for a number of reasons.
Firstly, it notes that no explanation was given by the Ödemiş
Court as to exactly how and why allowing the two siblings to spend
time together every weekend would confront Damla with variations in
discipline or would amount to an unacceptable change of environment,
especially given the fact that they lived in the same neighbourhood.
In the alternative, even if
it deemed the access arrangements proposed by the applicants to be
unsuitable, it would have been possible for the Ödemiş
Court to consider other methods of access between the two children
and thus uphold their rights under Article 8 of the
Convention.
- Neither
did the Ödemiş Court seek to differentiate the case from
those of the Court of Cassation's previous decisions which had been
relied on by the applicants in support of their submissions and from
which it appears that the established practice of the judiciary in
Turkey is to ensure that contact between the children of divorced
couples is maintained (see paragraph 12 above). Moreover, the
Court observes that the Ödemiş Court did not only fail to
seek the opinion of the children but also failed to base its decision
on any evidence, such as psychological and other expert assessments,
despite the fact that it was informed by the applicants that the
situation had been causing them psychological problems.
- Neither can the Court accept the Government's argument
that allowing Damla to spend every other weekend with her father
would have adversely affected her development, in
the absence of solid evidence in support of that submission, such as
the psychological or other expert assessments referred
to in the preceding paragraph. At this juncture the
Court reiterates that, contrary to the Government's submission, the
mutual enjoyment by parents and children of each other's company
constitutes a fundamental element of “family life” within
the meaning of Article 8 of the Convention (see Kutzner v.
Germany, no. 46544/99, § 58, ECHR 2002 I and the cases
cited therein).
- The
Court also observes with regret that, despite the importance of the
case it had before it, in its decision rejecting the appeal the Court
of Cassation did not address the two detailed submissions made by the
applicants which included references to its own case-law concerning
the need for siblings to keep in contact (see paragraphs 12-13 above)
but merely held that the Ödemiş Court had “adequately
examined the evidence available to it and that its conclusion had
been in accordance with the applicable legislation”.
- In
the light of the foregoing, the Court considers that the domestic
courts' handling of the applicants' case, during which they failed to
have due regard to the best interests of the family, fell
short of the State's positive obligation.
There
has therefore been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 14 OF THE
CONVENTION AND ARTICLE 5 OF PROTOCOL No. 7 TO THE CONVENTION
- The
applicants complained that different conclusions reached by different
courts were not compatible with Article 6 of the Convention. They
also argued that the inability of the children to see each other, and
that ordering the first applicant to pay maintenance to his ex-wife
in respect of his daughter because he was a male, was discriminatory
within the meaning of Article 14 of the Convention and infringed
their rights under Article 5 of Protocol No. 7 to the Convention.
- The Court has examined these complaints. Having regard
to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 13,352 euros (EUR) in respect of pecuniary damage.
This amount represented the first applicant's unsuccessful claim for
maintenance payments from his ex-wife in respect of his son Armağan
(see paragraphs 10-11 above). The applicants also claimed the sum of
EUR 80,000 in respect of non-pecuniary damage. In support of
this latter claim the applicants submitted medical reports showing
that they had received treatment for depression.
- The
Government submitted that the claim in respect of pecuniary damage
had no basis. Concerning the claim for non-pecuniary damage, the
Government suggested that, after Damla reaches the age of eighteen,
she will be able to have contact with other members of her family.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, deciding on an equitable basis, it awards the applicants
jointly the sum of EUR 15,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 1,796 for the costs and expenses incurred
before the domestic courts and EUR 5,882 for the fees of their legal
representative before the Court. In support of their claims the
applicants submitted various bills and a fee agreement with their
representative.
- The
Government considered that the expenses relating to the domestic
proceedings could not be claimed under this head. As for the
applicants' claim for their costs and expenses before the Court, the
Government submitted that they were not supported by any documentary
evidence.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In response to the
Government's argument concerning the costs and expenses relating to
the proceedings at the national level, the Court reiterates that, if
it finds that there has been a violation of the Convention, it may
award the applicant the costs and expenses incurred before the
national courts for the prevention or redress of the violation (see
Société Colas Est and Others v. France, no.
37971/97, § 56, ECHR 2002-III, and the cases cited therein). In
the present case the applicants brought the substance of their
Convention rights, that is their right to respect for their family
life, to the attention of both the first-instance court and the
appeal court. In the light of the foregoing, the Court considers that
the applicants have a valid claim in respect of part of the costs and
expenses incurred at the national level.
- Regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 2,500,
covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 8 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 2,500 (two thousand five
hundred euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicants, to be converted into Turkish
liras at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
