CASE OF GÖZÜM v. TURKEY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. The applicant was born in 1966 and lives in Istanbul. 6. In a decision of 22 May 2007, which became final on 20 July of that year, the Üsküdar Family Court (Istanbul) authorised the applicant, who was then single, to adopt a child, E., born on 5 November 2003 to Ms S.Ö. Consequently, under Article 314 §§ 2 and 3 of the Civil Code (no. 4721), “Gözüm” was registered as the surname of E. in the register of births and on the child’s identity documents. However, the registrar refused to indicate the applicant’s forename under the heading “mother”, where the name “S.” was retained, this being the forename of the child’s biological mother. 7. On 23 November 2007 the applicant applied to Üsküdar District Court seeking the replacement of the forename “S.” by her own. In her view, the fact that her forename had not been given as that of the mother of her adopted son was both discriminatory and unconstitutional, likely to undermine their personal, family and social development, and thus constituting a violation of, among other provisions, Articles 8 and 14 of the Convention. She argued that in relation to single-parent adoptions there was a lacuna in the Civil Code which required the court to make provision for such a situation of its own motion, pursuant to Article 1 of that Code or, failing that, to request a preliminary ruling of the Constitutional Court. 8. On 26 February 2008 the court dismissed the applicant’s request on the ground that it had no legal basis. It found that the Civil Code, in choosing to regulate only two-parent adoptions – those granted to a couple jointly –, intended to treat the legal relationship between the adoptive parents and the adopted child as “a biological relationship”, which was not possible in the case of single-parent adoptions, where either a mother or a father was absent. Thus the legal situation obtaining in the present case could not be regarded as unconstitutional. On 14 April 2008 the applicant appealed on points of law. 9. On 15 March 2009, when those proceedings were still pending, a new regulation entered into force entitled “Regulation on the implementation of mediation services for the adoption of minors” (“the Regulation”), enabling a single adoptive parent to have his or her forename registered in the place of that of the biological parent ... 10. On 5 November 2009 the Court of Cassation upheld the decision of the court below in a judgment which made no mention of the legislative reform. 11. On 14 December 2009 the applicant was notified of that judgment. 12. On 9 November 2010 she applied to the registry office for the registration of her forename as that of the mother of E., relying on Article 20 § 4 of the new Regulation. That request was granted on the same day and the record entries concerning the child were consequently amended with immediate effect. ...