Hansen v Turkey
| Judgment Date | 19 June 2001 |
Human rights – Private and family life – Access – Duty on state to take steps to facilitate access – Whether authorities taking sufficient steps – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The mother was a national of Iceland, where her two daughters were born. The girls’ father was a Turkish national. Following the separation of the father and mother, the father took the children with him to Turkey, ostensibly for a holiday. However, the father and the children remained in Turkey and did not return. In 1991, the mother issued proceedings for divorce and custody in the Turkish courts. That court granted the father custody of the children. Due to a number of appeals and rehearings, proceedings were not finally determined until 1997, during which time a number of regimes applied governing the mother’s access to the children. However, between March 1992 and August 1998, the mother only saw her children on four occasions. On a number of occasions, the mother visited the father’s house accompanied by enforcement officers to find that the children were not present. The mother complained to the European Court of Human Rights, invoking, inter alia, art 8 of the Convention, contending that the Turkish authorities had failed effectively to enforce her access rights to her children in violation of her right to respect for family life.
Held – Although art 8 imposed certain positive obligations on states to take measures to permit parents to be reunited with their children, those obligations to take measures were not absolute, and the rights and concerns of all concerned, including the best interests of the child, had to be taken into account. Therefore the court had to ascertain whether the domestic authorities had taken all such necessary steps to facilitate the execution of contact provisions as could reasonably be demanded in the circumstances of the case. In the instant case, the authorities had clearly not done all that could reasonably be expected of them to ensure the mother’s right of access. There had, accordingly, been a violation of art 8 of the Convention.
Cases referred to in judgmentAndersson v Sweden (1992) 14 EHRR 615, ECt HR.
Elsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Eriksson v Sweden (1989) 12 EHRR 183, [1989] ECHR 11373/85, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Keegan v Ireland (1994) 18 EHRR 342, ECt HR.
Kutzner v Germany[2003] 1 FCR 249, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Olsson v Sweden (No 2) (1992) 17 EHRR 134, [1992] ECHR 13441/87, ECt HR.
Sylvester v Austria[2003] 2 FCR 128, ECt HR.
ApplicationThe applicant, by a case originated in an application (no 36141/97) against the Republic of Turkey lodged with the European Commission of Human Rights under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged, inter alia, a violation of art 8, contending that the Turkish authorities had failed effectively to enforce her right of access to her children in accordance with their positive obligation under art 8 of the Convention. The facts are set out in the judgment of the court.
23 September 2003. The EUROPEAN COURT OF HUMAN RIGHTS (FOURTH SECTION) delivered the following judgment.
PROCEDURE1. The case originated in an application (no 36141/97) against the Republic of Turkey lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by an Icelandic national, Ms Sophia Gurún Hansen (the applicant), on 14 April 1997.
2. The applicant was represented by Mr H Kaplan, a lawyer practising in Istanbul. The Turkish government (the government) did not designate an agent for the purposes of the proceedings before the court.
3. The applicant alleged, inter alia, that the Turkish authorities had failed effectively to enforce her right of access to her children in accordance with their positive obligation under art 8 of the Convention. She further alleged that she had been deprived of her right to see her children as a result of discrimination, in particular on the ground that she was a Catholic and of Icelandic nationality.
4. The commission decided on 27 May 1998 to bring the applicant’s complaints concerning her right to respect for her family life and discrimination on the ground of her nationality and religion to the notice of the respondent government, in accordance with r 48(2)(b) of its Rules of Procedure.
5. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
6. The application was allocated to the first section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1). Mr R Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (r 28). The government accordingly appointed Mr F Gölcüklü to sit as an ad hoc judge in his place (art 27(2) of the Convention and r 29(1)).
7. By a decision of 19 June 2001, the court declared the application admissible.
8. The applicant and the government each filed observations on the merits (r 59(1)). The chamber decided, after consulting the parties, that no hearing on the merits was required (r 59(3) in fine). The parties replied in writing to each other’s observations. In addition, third-party comments were received from the Icelandic government, which had exercised its right to intervene (art 36(1) of the Convention and r 61(2)).
9. On 1 November 2001 the court changed the composition of its sections (r 25(1)) and this case was allocated to the new fourth section.
THE FACTS I. The circumstances of the case10. The applicant was born in 1959 and lives in Iceland. She is the mother of two daughters, VA, who was born in 1981, and AA, who was born in 1982. At the time of their births the applicant was living in Reykjavik with Mr Halil Al, a Turkish citizen. The children were born out of wedlock.
11. On 13 April 1984 the couple married in Iceland. Halil Al obtained Icelandic citizenship three years later.
12. The applicant and Halil Al separated in November 1989 and Halil Al moved from the house they shared in February 1990.
13. In June 1990 Halil Al went to Turkey with the two girls for a holiday. The applicant gave her consent to allow her daughters to accompany their father to Turkey. In August 1990 the applicant received a telephone call from Halil Al, who told her that her daughters would not be returning to Iceland. From that point on Halil Al refused to communicate with the applicant. Over the following months the applicant received no information about the children or their condition in Turkey.
A. Divorce and custody proceedings in Iceland
14. The applicant applied to the Icelandic authorities for a decree of divorce and custody of her two daughters.
15. On 11 January 1991 the Ministry of Justice issued a separation licence and provisionally granted custody of the children to the applicant.
16. On 10 April 1992 the Ministry of Justice decided that the applicant should be granted custody of the children in view of the fact that they had been living with their mother since their parents separated and that Iceland had always been their home. The ministry based its decision on the opinion of the Reykjavik Child Welfare Committee, which made an overall
assessment of the applicant’s and Halil Al’s financial situation and living conditions.
17. On the same date the Ministry of Justice issued a divorce decree, under which Halil Al was to pay the applicant maintenance for each child until the age of 18 and the children were to have access to their father under arrangements to be determined by mutual agreement between the parents.
B. Divorce and custody proceedings in Turkey
18. On 25 October 1991 the applicant brought an action before the Bakrköy Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) in Istanbul in which she sought a divorce and custody of her daughters.
19. At a hearing held on 12 March 1992 VA and AA appeared before the court. VA stated as follows:
‘I want to remain in the custody of my father. Sophia was my mother once upon a time. She is not my mother anymore. She was bad to me. She has left us alone. She was going out with other men. I love my father.’
AA stated:
‘I want to remain in the custody of my father. Sophia was my mother once upon a time. I do not want her anymore. She has left us alone. We were frightened. She was always going somewhere. I love my father.’
20. On 12 November 1992 the Bakrköy Civil Court of General Jurisdiction declared the applicant and Halil Al divorced and granted custody of the children to the father. It considered in accordance with Law no 2675 that the applicable law in the case was Turkish law.
21. The Civil Court considered that the children had expressed the wish to stay with their father, who tended to their emotional needs and gave them a decent education. The children had adjusted to their life in Istanbul and to their father’s environment. If they were removed from their surroundings, they would suffer psychologically and emotionally. It was therefore in the children’s best interest to remain with their father, who had sufficient income to support them and pay for their education. The Civil Court also granted the applicant visiting rights allowing her to see the children every July for 30 days.
22. The case attracted the attention of the media and the general public and a group of Turkish and Icelandic reporters were in court when it gave its decision.
23. The applicant appealed. On 23 February 1993 the Court of Cassation quashed the decision of the Civil Court on the grounds...
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