Family Law

Dr Burcu Yüksel, University of Aberdeen

By an individual application made by Marcus Frank Cerny in July 2013 (App No 2013/5126), the Turkish Constitutional Court for the first time examined an allegation of violation of rights secured under the Turkish Constitution in the proceedings before the Turkish courts in relation to the 1980 Hague International Child Abduction Convention to which Turkey has been a party since 2000. The court gave its judgment on 2 July 2015 and decided by majority that the applicant's right to respect for family life, which is guaranteed under Art 20 of the Constitution, was violated.

Mr Cerny, a US national, was married to AA, a Turkish national, and they were living in the US with their newborn child. In late 2011, AA travelled to Turkey with the child to attend her sister's wedding and never returned to the USA. While in Turkey she filed a divorce action before the Ankara 9th Family Court. For requesting the return of his child to the USA under the Hague Convention, Mr Cerny had applied to the American Central Authority which then made an application to the Turkish Central Authority. In June 2012, the Ankara public prosecutor opened a case before the Ankara 7th Family Court seeking the child's return, but the court dismissed the request in October 2012 on three main grounds:

1.  the award of the Ankara 9th Family Court in the ongoing divorce action giving the temporary custody of the child to the mother and providing for the establishment of a personal relationship between the father and the child;
2. the absence of the conditions required for the summary return of the child set out under Art 12 of the Hague Convention; and
3. the child's age and need for the mother's affection.

The judgment was appealed against on grounds inter alia that, even though the provisions of the Hague Convention and Act No 5717 require the determination of the child's habitual residence and return of the child to his/her habitual residence, the case was decided in accordance with the provisions of custody and the decision was made based on subjective criteria which should not have been applied, such as the child's age and need for the mother.

The judgment was upheld by the 2nd Civil Chamber of Yargıtay (the Supreme Court of Turkey) in February 2013 on the ground that it had been understood that conditions to require the return of the child had not occurred and that Art 13(1)(b) of the Hague Convention was taken into consideration. A request for a revision of the decision was made but rejected in May 2013 and the judgment of the Ankara 7th Family Court became final.

Mr Cerny then lodged an individual application before the Constitutional Court, alleging that his rights under Arts 36 (Freedom to claim rights), 41 (Protection of the family and children's rights), 90 (Ratification of international treaties) and 138 (Independence of the courts) of the Constitution were violated. Before the Constitutional Court gave its judgment, the Ankara 9th Family Court had given its judgment in the divorce action and held that the parties were to be divorced, custody of the child was to be given to the mother and a personal relationship between the father and the child was to be established during certain time periods depending on the stage of the development of the child. After its appeal, this judgment became final in October 2014. In parallel to the proceedings in Turkey, Mr Cerny filed a divorce action in the USA before the Orange County Superior Court, California and it was assessed by that court that, since the dispute regarding the right of custody and access had been determined by the Turkish courts having jurisdiction, the only remaining issue to be dealt with by itself was the share of the matrimonial property.

The Constitutional Court rightly found that there had been a violation of Art 20 of the Constitution on the ground that the reasoning of the Turkish courts' judgments for the refusal of the return request made under the Hague Convention was not relevant and sufficient regarding the right to respect for family life, and that the interference with this right was not proportionate (para 87). The court did not concern itself with the identification of the habitual residence of the newborn child in its decision.

However, this finding of violation did not result in any return remedy to the left-behind father, because the court unanimously rejected his request for the retrial of the case. The court did not consider there to be any legal interest in the retrial on the basis of the Ankara 9th Family Court's decision on the merits of custody rights and the Orange County Superior Court's, California assessment (para 93). Considering Art 17 of the Convention, the fact that the merits of custody had already been decided by the Ankara 9th Family Court should not be interpreted as a ground for refusing the retrial of the case on its own. A contrary interpretation would encourage the potential abductors to succeed in legitimating a wrongful action, which they brought about unilaterally, by means of a decision obtained in the State of refuge in favour of them subsequent to the abduction and this does not accord with the object of the Convention. However, in the present case, the assessment of the Orange County Superior Court, California makes a difference because it amounts to the recognition of the Turkish court's judgment on custody and access. Therefore, the Constitutional Court was correct in its decision to refuse the request of the retrial of the case.

The Constitutional Court endeavoured to review this application in a manner consistent with the jurisprudence of the European Court of Human Rights. However, it took almost 2 years for the court to give its decision and, before that, there is an additional 1.5-year period. The duration of the proceedings in this case significantly exceeded the period of 6 weeks set out in Article 11 of the Hague Convention.

---

A more detailed version of this article will be published in issue 3 of International Family Law.