Individual Application of Hayriye Özdemir

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Ms. Özdemir had a child with her husband. After the finalization of her divorce and custody proceedings, gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance accepted the lawsuit on the grounds that the Constitutional Court had invalidated Article 4 of Surname Act, which said that a “the child would carry the surname that the father chose or will choose even if the custody of the child has been transferred to the mother following the divorce.” However, the Court of Appeals reversed the lower court’s decision citing Article 321 of the Turkish Civil Code No. 4721 which states that a child should carry the family name of the father, that a child’s name could only be changed in the father consented or if the child, when he/she reached lawful age, duly petitioned for such a change, and that the transfer of custody to the mother does not give the mother power to change the child’s last name. The Court of First Instance complied with the appellate court’s decision and rejected the lawsuit, leading to Ms. Özdemir’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özdemir the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of the Constitution.

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