SECOND SECTION
 
 
 
 
 
CASE OF TUNCER GÜNEŞ v. TURKEY
 
(Application no. 26268/08)
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
3 September 2013
 
 
FINAL
 
03/12/2013
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tuncer Güneş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Guido Raimondi, President,
 Danutė Jočienė,
 Dragoljub Popović,
 András Sajó,
 Işıl Karakaş,
 Paulo Pinto de Albuquerque,
 Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 26268/08) 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 a Turkish national, Ms Gülizar Tuncer Güneş (“the applicant”), on 16 May 2008. 2. The applicant was represented by Ms K. Doğru, lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant alleged, in particular, that the refusal by the domestic courts to allow her to bear only her maiden name unjustifiably interfered with her right to respect for her private life under Article 8 of the Convention. She claimed that the fact that Turkish law allowed married men but not married women to bear their own surname after marriage constituted discrimination on grounds of sex and was incompatible with Article 14 of the Convention. 4. On 22 October 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1966 and lives in Istanbul. 6. On 30 March 2005 the applicant, who is a lawyer, got married and took her husband’s surname pursuant to Article 187 of the Turkish Civil Code. She, however, kept her maiden name in front of her husband’s surname as provided for by the same provision. 7. On 9 May 2007 the applicant brought proceedings before the Şişli Court of First Instance for permission to use only her maiden name, “Tuncer”. 8. On 18 July 2007 the Şişli Court of First Instance dismissed the applicant’s request on the ground that, under Article 187 of the Turkish Civil Code, married women had to bear their husband’s name throughout their marriage and were not entitled to use their maiden name alone. 9. The applicant appealed. On 22 November 2007 the Court of Cassation upheld the judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE
10. The Civil Code:
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. (...)”
11. The Constitution:
Article 10
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds. Women and men shall have equal rights. (...)
(...)”
Article 90
(as amended by Law no. 5170 of 7 May 2004)
“... International agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”
12. 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 their objection. III. RELEVANT INTERNATIONAL LAW
13. The relevant international law are set out in the case Ünal Tekeli v. Turkey, no. 29865/96, §§ 17-31, ECHR 2004‑X (extracts). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
14. The applicant complained that the national authorities’ refusal to allow her to bear only her maiden name after her marriage amounted to a breach of Article 8 of the Convention. She also contended that the fact that Turkish law allows married men to bear only their own surname after marriage and not married women constituted discrimination on grounds of sex and was incompatible with Article 14 of the Convention. The applicant further submitted that the Turkish domestic courts, by disregarding the Ünal Tekeli v. Turkey judgment (cited above) given by the Court and failing to make the necessary amendments to the domestic law, had breached her right to an effective remedy under Article 13 of the Convention. 15. In view of the nature of the allegations made, the Court considers it appropriate to examine the case under Article 14 of the Convention taken together with Article 8. A. Admissibility
16. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
17. The applicant complained that the authorities had refused to allow her to bear only her own surname after her marriage, whereas Turkish law allowed married men to bear their own surname. She submitted that this resulted in discrimination on grounds of sex and was incompatible with Article 8 taken together with Article 14 of the Convention. 18. The Government maintained that the domestic courts were bound by Article 187 of the Civil Code and that the applicant had not been discriminated against in her daily or business life. They further added that consultations were taking place on draft legislation to bring Article 187 into line with the Convention and asked the Court to find that there had been no violation. 19. The Court notes that in the case of Ünal Tekeli, which raised issues similar to those in the present case, it observed that this difference in treatment on grounds of sex between persons in an analogous situation was in breach of Article 14 taken in conjunction with Article 8 (ibid., §§ 55-69). 20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

Article of the Convention at issue: Article 14
Outcome: violation