Press Release Nr: Individual Application 24/16
10.05.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF ASLAN FARUK TOPRAK ON THE RIGHT TO PROTECT AND DEVELOP MATERIAL AND SPIRITUAL ENTITY
(Click for full text of judgment)

On 24/3/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Aslan Faruk Toprak (application no. 2013/2957) that there had been a breach of the right to protect and develop material and spiritual entity guaranteed in Article 17 of the Constitution.

The Facts

The applicant was born in Germany in 1978 and was registered in the German birth record with the name of “Aslan”. The applicant’s parent applied to the Düsseldorf Consulate General for making his son registered also in the Turkish birth record. The applicant’s name registered in the Turkish birth record is as “Aslan Faruk”. The applicant, who got married with a Turkish citizen in 2005 and has been living in Germany since his birth, was deprived of his Turkish citizenship by virtue of the approval decision of 20/1/2006 taken by the Ministry of Internal Affairs. The applicant, who is currently a holder of a blue card, is only a German citizen and serves as a doctor in Germany.

On 5/10/2011, the applicant’s wife applied to the Düsseldorf Consulate General of the Republic of Turkey and requested the registration of their common children in the Turkish birth record. Her request was rejected on the grounds that father’s name of the children was “Aslan” in the German official records while his name was “Aslan Faruk” in the Turkish birth record and that a new application must be lodged with a copy of the birth certificate in which father’s name of the children was registered as “Aslan Faruk”.

The applicant brought an action for change of his name registered as “Aslan Faruk” in the closed Turkish birth record as “Aslan” by maintaining that he had been suffering from similar problems. At the end of the proceedings, the relevant court dismissed the applicant’s action brought by the applicant, who had been deprived of his Turkish citizenship and whose record was closed, on the ground that any step cannot be taken on the basis of a closed record. This decision became final after being subject to the appellate review.

Allegations

The applicant maintained that although there were reasonable grounds requiring the change of his name “Aslan Faruk” in the Turkish birth record which had been closed for being deprived of the Turkish citizenship, the dismissal of the action as the birth record had been closed hindered especially legal acquirements of his descendants. The applicant accordingly alleged that there had been a breach of the right to protect and develop material and spiritual entity which guarantees the individuals’ right to take an action with respect to their names.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation.

The protection with respect to the name which is one of the most significant elements of the identity of the individuals entails the fulfilment of the requests for change which do not preclude functioning of public order by the public authorities. In this respect, administrative or judicial remedies by which such kinds of requests could be raised and examined must be established and the requests scope of which is found appropriate within the scope of certain national and international arrangements must be fulfilled. While making arrangements concerning the personal statuses such as change of name, this issue must not be dealt with within a narrow framework by acknowledging that these arrangements only concern the law to which the citizens of the relevant country are subject. Accordingly, it is of importance that especially the guarantees introduced by the international conventions to which relevant persons are parties be respected and that efficient, accessible and foreseeable remedies by which the requests for change of names could be fulfilled and results could be accomplished be established. It may be required that such kinds of remedies be provided for not only citizens but also for foreigners under certain and restricted circumstances.

In cases where individuals are required to take an action with respect to their own names within the scope of Article 17 of the Constitution, the arrangements must not be made in a narrow manner given the fact that the circumstances of the right-holders may be different, and the provisions set out in the relevant international conventions must be materialized at a minimum level while the legislation is made.

It is obvious that the practice in which the request of the applicant, who was deprived of the Turkish citizenship with approval, uses the name of “Aslan” in his identity card and official documents in Germany of which he is a citizen and who is called with this name by persons around him, for changing of his name “Aslan Faruk” in the Turkish birth record as “Aslan” was rejected constitutes an interference to the right to protect and develop material and spiritual entity which is enshrined in Article 17 of the Constitution.

It is undoubted that it is ordinary for the applicant, who maintains his life with the name of “Aslan”, whose mother, father and wife are Turkish citizens and who is also a holder of blue card pursuant to the Law no. 5901, to perform certain official acts in Turkey. It is therefore foreseeable that the applicant might experience certain difficulties due to the difference between his name in his original identity card to be submitted and his name in the closed birth register. Indeed, in the impugned incident, the applicant’s descendants were not registered in the Turkish birth record due to the difference in the applicant’s names.

The civil registry services provided by the State to their citizens is a legal and technical service fundamental qualifications of which are taken from the civil law arrangements and private international law arrangements. Performance of this service is at the same time an obligation as it always requires accurate determination of the individuals’ identities which are a part of their material and spiritual entity. Performance of an action with respect to the personal status is accepted as a part of the public service in question for the states. This obligation is especially required to be fulfilled, in respect of the foreigners, by Turkey who is a member of the International Civil Status Commission.

Having regard to the application as a whole, it has been revealed that remedies which would ensure elimination of the discrepancies between the civil records for ensuring certainty in the applicant’s identity which is a part of his material and spiritual entity must be formed; and that only in this manner, the applicant’s right to name could be properly protected. It has been considered that the liabilities imposed on the public authorities by the Convention on Recording of Names and Surnames in the Birth Records (Convention no. 14) enables making limited corrections in a way which could eliminate the differences between the applicant’s official records even if being closed.

It has been concluded that as Article 14 of the Civil Registry Services Act no. 5490 was not interpreted by taking into consideration the Convention no. 14, the interpretation and attitude of the inferior courts in the present incident could not remedy the unjust treatment suffered by the applicant; that the provisions of the international convention which duly entered into force were not paid regard to in the resolution of the dispute; and that therefore the attitude in question failed to meet the requirement of being necessary in a democratic society and could not strike a proportional and fair balance between the public aim and the personal interest of the individual.

It has been consequently held by the Constitutional Court that there was a breach of the right to protect and develop material and spiritual entity which is guaranteed in Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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