CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 avril 2010

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Turkey (application no. 4694/03)   DOMESTIC COURTS’ CUSTODY ARRANGEMENTS SHOULD NOT HAVE PREVENTED BROTHER AND SISTER FROM SEEING EACH OTHER   Unanimously   Violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights     Principal facts   The applicants, Mustafa Akın, and his son, Armağan Akın, are Turkish nationals who were born in 1957 and 1988 respectively and live in Ödemiş (Turkey). When Mustafa Akın and his wife divorced in 2000, the civil court awarded custody of their son to him and custody of their daughter to the mother. By the same decision, the parents were to exchange the children during certain fixed periods of time. Mr Akın requested the court to grant an interim measure to the effect that he would have both children one weekend and his former wife would have them the next, arguing that this way the children would not lose contact with each other and he would have the opportunity to spend time with both of them together. The court rejected both this request and Mr Akın’s appeal against the custody decision.   In September 2001, Mr Akın brought proceedings against his former wife, requesting that the children be able to see each other every weekend. He claimed that the court’s custody decision, preventing the two children from seeing each other and him from spending time with both of them, was causing irreversible psychological problems for the children. He also claimed that when the children saw each other in the street, their mother prevented them from speaking to each other. The request was refused in February 2002. A subsequent appeal to the Court of Cassation, in which the applicants referred to previous decisions by that court according to which access arrangements should not prevent children of divorced parents from seeing each other, was rejected in April 2002. The Court of Cassation also rejected the applicants’ rectification request against this decision in July 2002.     Complaints, procedure and composition of the Court   Relying in particular on Article 8, the applicants complain that the brother and sister were prevented from seeing each other.   The application was lodged with the European Court of Human Rights on 6 January 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President, Ireneu Cabral Barreto (Portugal), Vladimiro Zagrebelsky (Italy), Danutė Jočienė (Lithuania), András Sajó (Hungary), Nona Tsotsoria (Georgia), Işıl Karakaş (Turkey), judges,   and Sally Dollé, Section Registrar.     Decision of the Court   The Court first noted that the custody arrangements separating the two siblings had been determined by the domestic court of its own motion, as neither parent had requested such an arrangement and the mother had asked for the custody of both children. The absence of reasoning to justify the separation of the children was therefore striking. The Court was not convinced by the Turkish Government’s argument that the children were not prevented from seeing each other, as they lived in the same neighbourhood. Maintaining the ties between the children was too important to be left to the parents’ discretion, in particular since the mother had prevented the siblings from speaking to each other in the street.   The Court could not concur with the reasoning that contact arrangements as requested by the applicants would confront Mr Akın’s daughter with “variations in discipline”, as the domestic court had not given any precise explanations in this regard. Even if those arrangements had been unsuitable, the domestic court could have considered finding another agreement to ensure the children would see each other on a regular basis. The Court further observed with regret that despite the significance of the case before it, the Court of Cassation had not addressed the detailed submissions by the applicants, which included references to its own decisions concerning the need for siblings to keep in contact.   The Court concluded that the domestic courts’ handling of the case had fallen short of the State’s obligation to protect family life, in violation of Article 8.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants jointly 15,000   euros in respect of non-pecuniary damage.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.