Farewell to Marckx and all that or how I received ‘the letter’ (from the registry of the European Court of Human Rights)

This guest post was written by Dr. Başak Çalı, Director, Center for Global Public Law and Assoc. Prof. of International Law, Koç University Law School, Istanbul.

It is not common to receive a letter from the registry of the European Court of Human Rights. At least, for me it’s not. I was excited to receive mine. I was excited to open it. Unfortunately, this excitement quickly turned into sadness and disappointment. My hero had let me down. My hero had let down thousands of women of Turkish nationality.

‘The letter

While I’d never personally received this ‘letter’ before, I have seen it many times. Many lawyers I have advised and worked with had shown me theirs. The letter is as short as can be. It rejects your application to the European Court of Human Rights. It does not include a single word of reasoning. It also ends on a destructive note. But, of course, seeing the letters of others is one thing, receiving your own is another. Let me quote from mine:

I refer to your application that was lodged on 10 May 2010. I write to you to inform that the European Court of Human Rights sitting in a single judge formation (Judge N Vucinic) decided to declare your application inadmissible.

In the light of the material in its possession and in so far as the matters complained of are matters within its competence the Court found that the admissibility criteria set out in Articles 34 and 35 have not been met.

The decision is final. Your file will be destroyed one year after the date of the Single Judges decision’.

Why did I receive ‘the letter’?

My application to the European Court of Human Rights concerned my own last name – the one I took when I was born in 1974. In Turkey, women automatically lose this name when they get married. Domestic law (or more precisely Article 187 of the Civil Code) presents them with two options: to change their surname to that of their husband or to join their name with that of their husband. Many women are happy with both of these options as a matter of personal choice. I was not one of them.

Those who refuse to carry the mark of their marriage in their name in Turkey embark upon the long journey of litigation. And when I mean litigation, I mean the real deal, not a simple administrative process. I took this journey. It took three years. I appeared before two courts, first the civil court and then the family court. Judges held several hearings. It cost time and money. It cost the Turkish taxpayer money. I was asked to produce evidence to convince judges, including a curriculum vitae to see whether I was remotely well-known under this name. I was also asked for a letter from my husband agreeing to this litigation. In return, I held that I was demanding a fundamental right. I did not need to produce any such evidence. I cited Tekeli v. Turkey, CEDAW Article 16g, and Article 90 of the Turkish Constitution.

After three years of litigation I was one of the lucky women who was able to convince the family court judge that I had the right to my name under the European Convention on Human Rights and Fundamental Freedoms as well as Convention on the Elimination of All Forms of Discrimination against Women, despite what was stated in the Turkish Civil Code. I was lucky as many women before (and after) me lost their cases before family courts in different cities across Turkey.

When the litigation was over I had to go around government offices with a judgment in my hand to get my name back. In my journey of litigation I started to identify commonalities with the journey Paula Marckx took through the Belgian Courts in the 1970s and my own journey through the Turkish courts. Marckx had to go to court to certify that the child she gave birth to was indeed her child. I had to go to court to keep my birth name after marriage.

Marckx is a cornerstone case for many reasons. One of these reasons is the gender sensitive principle it sets with respect to forcing women to litigate their fundamental rights. In Marckx, the Belgian government of the 1970s argued that most women who had illegitimate children did not want to have legal ties to their children, so having a few to litigate for it was not a big deal. The European Court of Human Rights stood precisely against this logic. The Turkish courts 40 years later said that most women want to change their name when they get married, so having a few women litigate for it was not a big deal. Marckx had established the central gendered principle: litigation processes in and of themselves can be discriminatory and unfit for claiming rights. I wanted the European Court of Human Rights – a court that has received similar applications from women who have lost their cases before the domestic courts in Turkey in – to state it once again. As in Marckx, it is the principle that counts. The fact I succeeded in litigation should not make a difference, especially for those who cannot afford to litigate.

Goodbye to Marckx and all that..

Instead, precisely five years after I lodged my application, I received ‘the letter’. Was I rejected because the Court thought that I lost my victim status? But how could this be the case given that it was precisely the process of three years of litigation that made me a victim. Did the Court think that my application was manifestly ill-founded? But how could it, after Marckx? Did the Court think that I did not suffer a significant disadvantage? But, how could being forced to carry a name to which I did not consent to for three years not be significant?

We will never know the answers to my questions. What we know is that the spirit of Marckx is clearly long gone. This European Court of Human Rights is no longer the same Court. What we also know is that twelve years after Tekeli v. Turkey, women who are able – who have the fiscal and cultural capital – must continue to litigate before courts – all the way to the Turkish Constitutional Court – to claim their names back.

 

Editors’ Note: On the issue of inadmissibility letters and their lack of motivation, see also previous post on the Strasbourg Observers here.

2 thoughts on “Farewell to Marckx and all that or how I received ‘the letter’ (from the registry of the European Court of Human Rights)

  1. I have great sympathy with what you write here Basak, if I may say so. and what I say is not meant to undermine the importance of the application you made.

    But what I am wondering is if, regrettably, your application is ‘collateral damage’ given the problems the Court is facing. I am left wondering what is the solution if the States are simply not prepared to fund the Court or supply it with sufficient resources to do the job properly (given the magnitude of its task)?

    I see from the recent CDDH Report on the Long-term Future of the Convention system that the Court will seek 30 million euros over the next 8 years to help clear the Brighton backlog. Seen in perspective of what the Court does the figure is tiny (top class footballers would get paid more over the eight years, I guess!) Then again, will the 47 States of the CoE offer this money?

    In the meantime, I am assuming that the Court will have to struggle on, and, I assume, some good applicants will be left baffled (In fact, I understand that the Court will start to issue basic (presumably very basic) reasons in single judge cases soon).

    Although it does not account for the rejection of your application, of course, part of the dilemma for the Court might be summed up in the words of its former Registrar Michael O’Boyle (recently retired of course). About ten years ago he wrote (in an essay collection – I can supply the reference if you need it, and he was writing in his personal capacity):

    “The basic reality is that an international court cannot handle 80k [it was 80 k back then, then went up to 160k, and is now at 66k, or so] pending cases without establishing priorities and deciding how to allocate its resources. The Court has chosen – wisely I believe – to concentrate on cases (also a large number) which raise prima facie issues of importance [I am not saying that your case did not come within that category!] . This is an imperative if the right of individual petition is to survive in a meaningful sense. If growing disenchantment from informed civil society is the price to pay, it is an unfortunate development. However, the ultimate asphyxiation of the system and the steady painful loss of credibility as an institution that would accompany it as an alternative price that we should not be willing to contemplate”.

    Not being a Strasbourg insider I cannot be sure if lack of resources is the real reason for its approach, of course, and I am very sorry that it impacts on those such as yourself, who clearly deserve to know more (in fact, something!) about your application’s rejection.

    With sincere best wishes

    Ed Bates.

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