CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 décembre 2011

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Turkey (application no.   16192/06), which is not final, [1] the European Court of Human Rights held, unanimously, that there had been:   a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;   a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention;   a violation of Article 13 (right to an effective remedy) in conjunction with Article 6 § 1 .   The case concerned the excessive length of divorce proceedings involving the issues of parental responsibility and contact for the parent not living with the child, and highlighted the value of recourse to family mediation as outlined in the Committee of Ministers’ Recommendation No. R (98) 1 . Principal facts The applicant, Cengiz Kılıç, is a Turkish national who was born in 1970 and lives in Denizli (Turkey). He married in 1996 and the couple had a child on 18 May 2001. On 23 November 2001 Mr Kılıç filed a petition for divorce on the grounds of incompatibility of temperament making it impossible for him and his wife to continue living together; he also applied to be granted parental responsibility in respect of his son. His wife opposed the divorce petition, submitting that criminal proceedings were pending against her husband, who was accused of violent conduct towards her. On 12 April 2003 she claimed maintenance for herself and her son. The court ruled that Mr Kılıç had a duty to pay maintenance; he subsequently lodged an objection to that decision, arguing that it had not been based on an examination of his personal circumstances.   In this first set of divorce proceedings, a large number of hearings were postponed pending the outcome of the criminal proceedings and receipt of information concerning Mr Kılıç’s social and economic situation. On 9 August 2005 Mr Kılıç applied to the court for an urgent order on the issue of custody of his son, arguing that his wife’s attitude towards their son’s health was irresponsible. At a subsequent hearing he told the court that his wife had prevented him from seeing his son. He later applied for an order ensuring the continuation of his relations with his son. The court ruled in his favour and granted him contact on the first Saturday of each month. In a decision of 13 December 2005 the court rejected the divorce petition filed by Mr   Kılıç, noting that he had been convicted of domestic violence on 17 March 2003. However, the judgment to which the decision referred was not final as an appeal on points of law had been lodged against it. The criminal proceedings were eventually discontinued because the time-limit for prosecuting the offence had expired. On 15 June 2006 Mr Kılıç filed a second petition for divorce with the court, submitting that he and his wife had lived apart for more than five years. As in the first set of proceedings, he asked the court to determine the issues of contact and parental responsibility and to dismiss his wife’s claim for maintenance.   On 21 September 2006 the court granted Mr Kılıç visiting and staying contact and ruled that he was to pay maintenance to his wife. On 1 March 2007 he stated that, being unemployed, he did not have the means to pay maintenance and complained that his wife was hindering his contact with the child. At another hearing he expressed vehement criticism of the judge dealing with the case. On 30 July 2007 he sought an order confirming his entitlement to contact, which could then be the subject of enforcement proceedings. The court made the order on the same day. On 18 September 2008 the court ordered a psychological report on the parents and the child for the purpose of determining who should temporarily be awarded parental responsibility. Finally, on 19 March 2009 the court granted the divorce and awarded parental responsibility to the mother. It arranged visiting and staying contact for Mr Kılıç and ordered him to pay maintenance for his son and a separate allowance for his former wife. In total, some 15 hearings were held during the second set of proceedings. On 20   May 2009 Mr Kılıç appealed on points of law, challenging all the conclusions reached in the judgment other than the decision to grant the divorce. On 2 November 2010 the divorce decree became final. Complaints, procedure and composition of the Court Relying on Article 8 in conjunction with Article 13, the applicant alleged a violation of his right to respect for his private and family life in that he had been forced to remain married although he had lived apart from his wife for many years. He complained of shortcomings on the part of the domestic authorities, which had not taken the necessary steps to allow him to maintain relations with his son and had not removed the obstacles to the exercise of his right to contact despite the court decisions in which he had been granted that right. Relying on Article 6 § 1 and Article 13, the applicant complained of the length of the two sets of divorce proceedings, and of the lack of an effective remedy enabling him to have his case heard within a reasonable time. The application was lodged with the European Court of Human Rights on 3 April 2006. Judgment was given by a Chamber of seven judges, composed as follows: Françoise Tulkens (Belgium), President , Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), Isabelle Berro-Lefèvre (Monaco), András Sajó (Hungary), Işıl Karakaş (Turkey), Guido Raimondi (Italy) , Judges ,   and also Stanley Naismith , Section Registrar. Decision of the Court Article 8 The Court reiterated that Article 8 included a right for parents to have measures taken with a view to reuniting them with their child and an obligation on the national authorities to take such action. Proceedings relating to parental responsibility required urgent handling as the passage of time could have irremediable consequences for relations between the child and the parent not living with him or her. The Court observed that between October 2005 and December 2008 Mr Kılıç had applied to the court at least ten times for an order ensuring the continuation of his personal relations with his son and had informed the court that his visiting contact had been hindered by the child’s mother, since at times he had had no contact with his son for up to two years. The psychological report on the parents and the child had not been ordered until September 2008 and had not been submitted until December 2008, more than seven years after the couple had separated. The report found that the considerable period during which there had been no contact between the applicant and his son had played a decisive role in the child’s attitude of rejection towards his father. The Court also noted that the file did not mention any efforts by the family-affairs judge to reconcile the parties’ positions or any measures to facilitate the execution of court decisions concerning Mr Kılıç’s contact rights. The Court reiterated that although it was not desirable to take coercive measures against children in order to restore family ties, the judicial authorities could have recourse to sanctions against a parent behaving unlawfully. However, in the present case the authorities had not taken any sanctions against the child’s mother for hindering the father’s lawfully established right to contact. The Court further emphasised that the understanding and cooperation of all concerned remained important, if not essential, factors in resolving situations of this kind. It noted that the Turkish legal system made no provision for civil mediation, a process that could promote such cooperation between the parties. [2] The Court considered that by failing to take all the measures that could reasonably have been expected of it in such circumstances, the State had fallen short of its obligations under Article 8. Article 6 § 1 The Court observed that the first set of divorce proceedings instituted by Mr Kılıç had lasted four years and one month and the second set four years and five months. The proceedings had not been especially complex, apart from the fact that the parties had disagreed on almost all aspects: the divorce, the granting of parental responsibility and the payment of maintenance. As regards the first set of divorce proceedings, the only procedural steps taken, other than the examination of four witnesses, had consisted in requesting and awaiting information and documents on two subjects: the parties’ social and economic situation and the criminal proceedings pending against the applicant. The wait had lasted two years and nine months. The court had made two interim orders, the first concerning the wife’s maintenance claim and the second concerning the applicant’s entitlement to contact; the latter order had been made four years after the proceedings had been instituted. As regards the second set of divorce proceedings, the parties’ respective positions had not changed in any way. Most of the hearings had been postponed. Relations between the parties, and Mr Kılıç’s attitude towards the court, had subsequently deteriorated.   The Court considered that the prolongation of the proceedings could not be attributed to the parties’ conduct. On the contrary, Mr Kılıç had repeatedly asked the court to take prompt action, arguing that it was impossible for him to maintain relations with his son in the context of divorce proceedings lasting for years. Although the two successive sets of proceedings had been separate, the Court considered that regard should nevertheless be had to the fact that they had had the same purpose and involved the same parties. In view of what was at stake in the proceedings, namely the parents’ divorce and its consequences for Mr Kılıç’s relations with his son, the Court found that the length of the two sets of proceedings could not be considered reasonable and concluded that there had been a violation of Article 6 § 1. Observing that the Turkish legal system did not afford litigants the opportunity to complain of the excessive length of proceedings, the Court held that there had been a violation of Article 13. Article 41 By way of just satisfaction, the Court held that Turkey was to pay the applicant 17,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses. Separate opinion Judge Popović expressed a separate opinion, which is annexed to the judgment. The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int . To receive the Court’s press releases, please subscribe to the Court’s RSS feeds . Press contacts [email protected] | tel: +33 3 90 21 42 08   Denis Lambert (tel: + 33 3 90 21 41 09) Emma Hellyer (tel: + 33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70) Nina Salomon (tel: + 33 3 90 21 49 79) Petra Leppee Fraize (tel: + 33 3 90 21 29 07) 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 Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution [2] The Court referred to Recommendation No. R (98) 1 of the Committee of Ministers of the Council of Europe on family mediation, recourse to which could “improve communication between family members, reduce conflict between parties in dispute, produce amicable settlements, provide continuity of personal contacts between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and states”.