REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

MARCUS FRANK CERNY

(Application no. 2013/5126)

PLENARY

JUDGMENT

I.          SUBJECT-MATTEROF THE APPLICATION

1.         The application is regarding the allegation that the right to respect for family life was violated since the application filed within the scope of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Convention) was dismissed upon the fact that a child in common was taken away by his/her mother from the United States of America (USA) and was not allowed to return.

II.       APPLICATION PROCESS

2.         The application was directly lodged with the Constitutional Court on 10/7/2013. In the preliminary examination held on administrative terms, it has been determined that there is no circumstance to prevent the submission of the application to the Commission.

3.         It was ruled by the Second Commission of the Second Section to send the file to the Section in order for its admissibility examination to be carried out by the Section.

4.         In the session held by the Section on 18/2/2014, it was ruled that the examination of admissibility and merits for the application be jointly carried out.

5.         The facts, which are the subject matter of the application, were notified to the Ministry of Justice and a copy of the application documents was sent for an opinion. The opinion letter of the Ministry of Justice of 21/4/2014 was notified to the counsel of the applicant on 29/4/2014 and no counter-opinion was submitted by the applicant against the opinion of the Ministry of Justice.

6.         Since it was deemed necessary during the meeting held by the Second Section on 25/6/2015 that the application is ruled upon by the Plenary Assembly due to its nature, it was ruled that it be referred to the Plenary Assembly as per Article 28(3) of the Internal Regulation of the Constitutional Court.

III.   THE FACTS

A.      The Circumstances of the Case

7.         The relevant facts as determined from the application form and the annexes thereof and the content of the trial file which is the subject matter of the application are summarized as follows:

8.         The applicant is a citizen of the USA and he and A.A. who is a Turkish citizen have a child in common who was born on 31/5/2011.

9.         An application was lodged by the applicant with the Department of State with regard to the initiation of return procedures within the scope of the Hague Convention with the allegation that the child in common was removed by his/her mother from the USA which was his/her habitual residence and was not allowed to return.

10.     The request in question was conveyed by the Department of State of the USA to the Directorate General for International Law and Foreign Relations (Directorate General) of the Ministry of Justice which is the Turkish Central Authority within the scope of the Hague Convention.

11.     On 19/1/2012, the request was conveyed by the Directorate General to the Chief Public Prosecutor’s Office of Ankara for the initiation of the return procedures of the child.

12.     An action for return was filed by the Chief Public Prosecutor’s Office of Ankara through the indictment of 11/6/2012 based on the file of the 7^th Family Court of Ankara No. E.2012/757.

13.     Following the preliminary proceedings, a report was drawn up by the court on 16/6/2012, two hearings were held and the case was dismissed with a judgment (File No: E.2012/757, K.2912/1403 of 1/10/2012). As the reasoning of dismissal, it was stated that the parties had a child in common, that the parties lived in the USA and that the defendant woman came to Turkey with the child in common for her sister's wedding. It was also stated that thereupon, she filed for divorce based on the file of the 9^th Family Court of Ankara No. E.2011/1268, that within the scope of the relevant case, it was ruled that temporary custody of the child is granted to the mother and that a personal relation is established between the applicant father and the child. It was stated that the conditions for prompt return as regulated in Article 12 of the Hague Convention did not materialize and the dismissal of the request was ruled upon by considering the age of the child and his/her dependence on the mother by a complete personal conviction.

14.     As the judgment was appealed, it was approved through the judgment of the 2^nd Civil Chamber of the Court of Cassation No. E.2012/26180, K.2013/3223 dated 12/2/2013 and it was stated in the justification of the judgment that it was ruled to dismiss the appeal as the objections which were not deemed as appropriate as it was understood from the scope of the file that the conditions for refusing to return did not materialize and that Article 13(1)(b) of the Hague Convention was taken into consideration.

15.     The request for correction of judgment was dismissed through the judgment of the 2^nd Civil Chamber of the Court of Cassation (File No: E.2013/9169, K.2013/13947 of 16/5/2013) and the judgment of dismissal was notified to the counsel of the applicant on 27/6/2013.

16.     An individual application was lodged on 10/7/2013.

17.     As a result of the process of return executed within the scope of the Hague Convention as well as the divorce filed by the applicant’s wife based on the file of the 9^th Family Court of Ankara No. E.2011/1268, it was ruled that the parties divorce, custody of the child in common be granted to the mother and that a personal relation be established between the applicant father and the child and the judgment became final on 13/10/2014 through the instance courts. 

B.      Relevant Law

18.     Article 1 of the Law on the Civil Aspects and Scope of International Child Abduction No. 5717 of 22/11/2007 with the side heading “Objective” is as follows:

       “The objective of the law is to arrange the procedures and principles in the implementation of the Civil Aspects of the International Child Abduction Convention dated October 25, 1980, in returning the wrongfully removed or retained children to their habitual residence in any Contracting State. ”

19.     Article 2 of the Law No. 5717 with the side heading “Scope” is as follows:

       “This Law shall apply to the children who are present in one of the contracting countries where they are habitually resident just before the violation of the rights to custody or to the establishment of a personal relation which are granted to a person or an institution for use by himself/herself/itself or together and were actually exercised when removal or retention occurred.”

20.     Articles 12, 13, 14 and 15 of the Law No. 5717

21.     Article 1 of the Hague Convention is as follows:

       “The objects of the present Convention are:

       a)  to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

       b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

22.     The relevant part of Article 3 of the Hague Convention is as follows:

       “The removal or the retention of a child is to be considered wrongful where:

       a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

       b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

            The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

23.     Article 12(1-2) of the Hague Convention are as follows:

       “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

       The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment."

24.     Article 13 of the Hague Convention is as follows:

       "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or another body which opposes its return establishes that:

        a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

       b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

       The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

       In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

25.     Articles 16 and 19 of the Hague Convention

IV.    EXAMINATION AND GROUNDS

26.     The individual application of the applicant (App.No: 2013/5126 of 10/7/2013) was examined during the session held by the court on 2/7/2015 and the following was ordered and adjudged:

A.      The Applicant’s Allegations

27.     The applicant stated that in the judicial judgment delivered upon the application filed by him within the scope of the Hague Convention due to his wife, who is a Turkish citizen, removing and retaining their child in common from the USA, which was his/her country of habitual residence, was dismissed on the ground that the conditions for return did not materialize and the child needed the affection and attention of the mother because of his/her age. He also stated that the judgment was delivered without examining the allegations of the parties with diligence during the trial, without conducting the necessary expert examination and hearing the parties. He stated that while the exceptions in relation to return as specified in the Hague Convention were not taken into consideration in the judgment delivered, the local public prosecutor’s participation in the proceedings on behalf of the Ministry of Justice was not ensured, either. He stated that although an exception with regard to the age of the child and the need for the affection and attention of the mother was not listed among the exceptions for the judgment of return in the Hague Convention, this matter was specified in the reasoning of the judgment. The applicant stated that the main purpose of the Hague Convention was to protect the right of a child, who was wrongfully removed from his/her habitual residence, to establish a direct and personal relationship with his/her mother and father by way of the prompt return of the child and preventing international child abduction. However, the provisions of the Hague Convention aimed at preventing the legitimization of similar actions were weakened due to the relevant applications of the instance courts which extended the scope of the cases that constituted as exceptions for return. He also stated that it was necessary to deliver a judgment in line with the provisions of the Hague Convention that was a decree in the force of law as per Article 90 of the Constitution, that the Hague Convention aimed to execute legal proceedings with regard to custody and personal relation at the place of habitual residence of the child without interrupting the relations between the mother, father and child, that however, the provisions of the Hague Convention on merits and procedure which needed to be applied in the incident by the courts of instance were not taken into consideration. Consequently, the applicant stated that his personal relationship with his child was prevented. He alleged that his rights defined in Articles 36, 41, 90 and 138 of the Constitution were violated. 

B.      The Constitutional Court’s Assessment

28.     The Constitutional Court is not bound by the legal qualification of the facts made by the applicant. Although it was alleged by the applicant that his rights defined under Articles 36, 41, 90 and 138 of the Constitution were violated, it was deemed appropriate to make an assessment in terms of Articles 20, 36 and 41 of the Constitution in accordance with the nature of the allegations of violation.

1. Admissibility

29.     As a result of the examination of the application, it must be ruled that the application is admissible as it is understood that it is not manifestly ill-founded and that there is no other reason that requires a judgment on its inadmissibility.

2. Merits

30.     The applicant alleged that his rights defined in Articles 36 and 41 of the Constitution were violated due to the judicial judgments delivered upon the application filed by him within the scope of the Hague Convention since his wife removed their child in common from the USA which was his/her country of habitual residence and s/he was not allowed to return.

31.     In the opinion letter of the Ministry of Justice, it was expressed that a similar opinion was prepared by the European Court of Human Rights (ECtHR) in similar applications by making an assessment in the context of Article 8 of the European Convention on Human Rights (Convention) and by stating that it was deemed unnecessary to make a separate assessment in the context of Article 6. It was also stated that Article 8 of the Convention imposed on the state negative liabilities as well as positive liabilities, that while reviewing the necessity of an intervention in a democratic society in the cases related to the measures and protection orders taken about children, it was reviewed whether or not the reasonings shown were relevant and sufficient and whether or not the decision-making process was fair and whether or not the rights of the applicant within the scope of Article 8 of the Convention were respected in this process. It was stated that appropriate relations needed to be established between the mother, father, and child even after the divorce of the mother and father and the examples of cases and judgments brought before the ECtHR with similar allegations of violation were included.

a. General Principles

32.     According to the provisions of Article 148(3) of the Constitution and Article 45(1) of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 of 30/11/2011, in order for the merits of an individual application lodged with the Constitutional Court to be examined, it is necessary that the right which is alleged to be intervened by public authority be enshrined in the Constitution and that it also be covered by the Convention and the additional protocols to which Turkey is a party. In other words, it is not possible to rule on the admissibility of an application, which contains an allegation of violation of a right that is outside the common field of protection of the Constitution and the Convention (Onurhan Solmaz, App. No: 2012/1049, 26/3/2013, § 18).

33.     Article 20 of the Constitution with the side heading “Privacy of private life” is as follows:

       “Everyone has the right to demand respect for his/her private and family life.  Privacy of private or family life shall not be violated.

       Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the above-mentioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized.  The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours.  The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall automatically be lifted.

       Everyone has the right to request the protection of his/her personal data.  This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives.  Personal data can be processed only in cases envisaged by law or by the person’s explicit consent.  The principles and procedures regarding the protection of personal data shall be laid down in law.”

34.     Article 41 of the Constitution with the side heading “Protection of the family, and children’s rights” is as follows:

       “Family is the foundation of the Turkish society and based on the equality between the spouses.

       The State shall take the necessary measures and establish the necessary organization to protect the peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.

       Every child has the right to protection and care and the right to have and maintain a personal and direct relationship with his/her mother and father unless it is contrary to his/her high interests.

       The state shall take measures for the protection of the children against all kinds of abuse and violence."

35.     Article 8 of the Convention with the side heading “Right to respect for private and family life” is as follows:

       "(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

       (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

36.     The right to respect for family life is enshrined in Article 20(1) of the Constitution. Given the reasoning of the article, it is seen that the necessities that the public authorities cannot intervene in private life and family life and that a person should be able to arrange and live his/her personal and family life as s/he desires is emphasized, and the relevant regulation constitutes the Constitutional equivalence of the right to respect for family life protected within the framework of Article 8 of the Convention. Moreover, it is obvious that Article 41 of the Constitution needs to be taken into consideration especially as regards the assessment of positive liabilities in relation to the right to respect for family life as per the principle of holism of the Constitution.

37.     Main relations within family life are relations between man and woman and parent and child. Civil marriage unities, as a rule, are guaranteed within the scope of family life and the children who are born within a marriage are automatically considered as a part of the marriage relation.  In this framework, it is necessary to accept that a bond is formed which establishes family life between a child and the parent from the birth of the child (For a judgment of the ECtHR in the same vein, see Gluhakovic v. Croatia, App. No: 21188/09, 12/4/ 2011, §§ 54, 60). In the incident which is the subject matter of the application, the applicant's child was born within marriage and s/he is a part of the family which legally exists. In this context, the relevant relation between the applicant and his child is sufficient for the establishment of family life.

38.     The main element of family life is the development of family relations in a normal way and, accordingly, the family member’s right to live together. It is not possible to consider the scope of this right independently from the liability of respect for family life. 

39.     The wish of parents and children to live together is an indispensable element of family life and the fact that the joint life between the mother and father comes to an end in legal or actual terms does not eliminate family life. It is obvious that the family life between a parent and the child will also continue following the cessation of the joint life by the mother and father and the right to respect for family life of the mother, father and child also includes the measures aimed at reuniting the family in specified cases. The relevant liability is valid not only for the disputes as regards public authorities keeping children under protection, but also for disputes among parents or other family members with regard to custody and the establishment of personal relation (For a judgment of the ECtHR in the same vein, see Berrehab v. the Netherlands, App. No: 10730/84, 21/6/1988, § 21; Gluhakovic v. Croatia, §§ 56-57).

40.     The liability which is valid for the state within the scope of the right to respect for family life is not only limited to the avoidance of intervention in the specified right in an arbitrary way, but it also covers positive liabilities in the context of ensuring respect for family life in an effective manner in addition to this negative liability. The relevant positive liabilities make it obligatory to take measures aimed at ensuring respect for family life, even if it is within the scope of interpersonal relations (For a judgment of the ECtHR in the same vein, see X and Y v. the Netherlands, App. No: 8978/80, 26/3/1985, § 23).

41.     In terms of the liability of the state to take positive measures, Articles 20 and 41 of the Constitution contain the right of a parent, the father in the present case, to request measures be taken so as to ensure the unity of him with his child and the liability of public authorities to take these sort of measures. It is clearly stated in Article 41 that every child has the right to have and maintain a personal and direct relationship with his/her mother and father unless it is contrary to his/her high interests. However, this liability is not absolute and the quality and scope of the measures to be taken may vary depending on the specific circumstances of each case (For a judgment of the ECtHR in the same vein, see Ignaccolo-Zenide v. Romania, App. No:31679/96, 25/1/2000, § 94; İlker Ensar Uyanık v. Turkey, App. No:60328/09, 3/5/2012, § 49).

42.     In many cases brought before the ECtHR, the ECtHR expresses that respect for family life imposes on public authorities a positive duty in the form of uniting a parent and his/her children and that this situation is also valid for cases in which separation is caused not by the state, but by a parent, that the positive liability in this field requires both the creation of a regulatory judicial framework protecting the rights of individuals and the taking of appropriate measures that will be actually implemented , which are aimed at securing respect for family life even in terms of relations between individuals (Hokkanen v. Finland, App. No: 19823/92, 23/9/1994, § 58; Glaser v. the United Kingdom, App. No: 32346/96, 19/9/2000, § 63; Bajrami v. Albania, App. No: 35853/04, 12/12/2006, § 52).

43.     Nevertheless, it is not easy to pinpoint under which conditions the positive liabilities within the scope of the right to respect for family life require the performance of positive actions due to the nature of the relations within the scope of the relevant right. The ECtHR also accepts that the concept of respect does not have a certain definition especially when positive liabilities are the case and that the requirements of this concept vary significantly from one case to another when differences in the cases encountered and practices followed in contracting states are considered (For a judgment of the ECtHR in the same vein, see Abdulaziz, Cabales and Balkani v. the United Kingdom, App. No: 9214/80, 28/5/1985, § 67).

44.     The right of the mother, father, and children to live together is an essential element of family life and in the event that the rights to custody and to the establishment of a personal relation granted to the other spouse are unlawfully prevented by the mother or the father although the relationship between the mother and father does not cease to exist in legal terms, the liability of the state to ensure that a regulatory judicial framework aimed at protecting the rights of individuals is created and that the appropriate measures which will be actually implemented are taken constitutes an aspect of positive liabilities in the context of the right to respect for family life. In this context, international child abduction cases caused by parents constitute an important group of cases that require an assessment in the context of the right to respect for family life.

45.     International child abduction has various impacts on both children and parents, and especially, the child who is the victim of this action is not only deprived of his/her contact with the other parent and of the feeling of love, affection, and protection that is s/he needs to receive therefrom, but s/he is also away from his/her own home environment and s/he is generally transferred to a new culture, a different legal system, language and a different social structure and these differences bring into question serious problems in terms of the right to respect for family life.

46.     International child abduction cases require a serious cooperation at an international level and one of the most important means in terms of this cooperation is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The ratification of the Hague Convention signed on behalf of Turkey on 21 January 1998 was approved with the Law No. 4461 of 3 November 1999 and following the approval with the Resolution of the Council of Ministers No. 99/13909 of 29 December 1999, it was published in the Official Gazette No. 23965 of 15 February 2000 and the Convention whose instrument of ratification was handed over on 31 May 2000 entered into force on 1 August 2000.

47.     In the most simple terms, the Hague Convention envisages a rapid procedure in relation to the settlement of international child abduction cases caused by a parent by prescribing the prompt return of the child that is illegally abducted or retained in one of the contracting states and in the event that a child who habitually resides in one of the contracting states to the Hague Convention is illegally abducted to another contracting state or retained there, except for the limited number of exceptional cases stipulated in the Convention, the competent authorities of the country where the child is present must promptly return the child to his/her country of habitual residence.

48.     In international child abduction cases caused by the mother or father, the provisions of the Hague Convention have an important place in terms of the assessment of the positive liabilities of the state with regard to the right to respect for family life.

49.     While the Convention draws up a general framework for the return procedure, it does not contain any provision in relation to the judicial procedure of the return application and leaves the designation of the competent authorities and procedure involved in the process to the contracting states. Turkey has also prescribed certain regulations with regard to its positive law and the implementation thereof for the applicability of the Hague Convention and the ratification of the Law No. 5717 is the most important step taken at this point. The practice which was executed within the scope of the Circular of the Ministry of Justice No. 65 of 1/1/2006 with regard to the implementation of the Hague Convention prior to the Law No. 5717 regained a more robust legal framework in this way. Moreover, the Circular No. 65 was amended with the Circular No. 65/2 of 16/11/2011 in order to harmonize it with the provisions of the Law No. 5717.

50.     It is also seen that various aspects of the Hague Convention were referred to in many judgments of the ECtHR and that especially Article 8 of the Convention was interpreted by the Court in these cases in light of the Hague Convention. In addition, the ECtHR makes assessments by considering the provisions and implementation of the Hague Convention in the context of Article 6 of the Convention and especially in relation to the right to trial within a reasonable time and it is understood that while the condition of reasonable time is assessed during the examination conducted, especially the aspect of the interest that the applicant has in the speedy conclusion of the case is emphasized when compared to the criteria of the complexity of the case, the attitude of the parties and the attitude of competent authorities.  According to the ECtHR, cases with regard to the right to retention are the cases which need to be concluded promptly for this very reason. The Court states that the Convention cannot be interpreted on its own but must be interpreted in harmony with the general principles of international law and indicates that in matters of international child abduction, the obligations that Article 8 of the Convention imposes on the Contracting States within the scope of the right to respect for family life must therefore be interpreted by taking into account the provisions of the Hague Convention (Neulinger and Shuruk v. Switzerland, App. No: 41615/07, 6/7/2010, §§ 131-132).

51.     In this respect, the ECtHR emphasizes that it has the venue of reviewing the procedure followed by national courts and particularly determining whether or not national courts pay regard to the guarantees in the Convention and especially in Article 8 while interpreting and implementing the provisions of the Hague Convention and, in line with the principle of subsidiarity which is an important principle on which its review is based, does not subject to assessment the discretion of national courts in terms of return or the dismissal of return, but examines whether or not the conclusion reached by national courts strikes a balanced meeting the standards envisaged in Article 8 of the Contract and whether or not the conclusion reached means a violation of the right to the protection of family life in this sense.

52.     Within the scope of the Hague Convention, the ECtHR has many judgments with regard to the right to retention and visit. In the mentioned judgments, it is seen that the Court interpreted the Hague Convention especially in the context of positive liabilities. In this sense, for example, the Court rules that Article 8 of the Convention was violated due to the failure of taking sufficient measures for ensuring the prompt return of the child in accordance with the liabilities within the framework of the Hague Convention, the failure to act diligently in ensuring the return of the child to his/her habitual residence and the trial held with regard to the request for return having taken longer than required (Iglesias Gil and A. U. I. v. Spain, App. No: 56673/00, 29/4/2003, §§ 56-63; Sylvesterv. Austria, App. No: 86/03, 24/4/2003, §§ 67-72; Carlson v. Switzerland, App. No: 49492/06, 6/11/2008, §§ 70-82; Serghidesv. Poland, App. No: 31515/04, 2/11/2010, §§ 72-75). According to the Court, the fact that a parent continues to live together with the child constitutes an essential element of family life in the meaning of Article 8(1) of the Convention. Article 8 of the Convention covers the right to request that necessary measures be taken which will ensure the reunion of a parent with his/her child as well as the liability of national authorities to take these measures. The decisive point in this matter is whether or not all reasonable measures expected from national authorities in order to facilitate the exercise of the right to custody, visit or live together granted to a parent through the legislation in force or court judgments are taken by them. In this area, the positive liabilities imposed by Article 8 of the Convention on the Contracting States are interpreted in the light of the Hague Convention (Neulinger and Shuruk v. Switzerland, § 132).

53.     It is seen that the Hague Convention, which has also become a part of Turkish law, contains guiding provisions in terms of the identification and implementation of its positive liabilities in relation to the right to respect for family life. For this reason, the provisions of the relevant Convention must be taken into consideration in the determination of the positive liabilities imposed on the state with regard to the right to respect for family life guaranteed in Articles 20 and 41 of the Constitution.

54.     Aims of the Hague Convention are to ensure the prompt return of children who are brought to the contracting states by unlawful means or are again wrongfully retained in these states and to ensure the observance of the right to retention and visit in a contracting state by other contracting states in an effective manner. The Hague Convention aims to ensure the prompt return of a child who is abducted or wrongfully retained to his/her country of habitual residence and to reestablish the status quo before this case and provides a significant contribution to the sustainability of family ties in this sense. In order for the Hague Convention to have a scope of implementation, the habitual residence of the child needs to be in one of the contracting states and what is meant by this is the actual living place of the child. The presence of an unlawful removal or retention case and whether or not there is a violation of the right to retention within the scope of the Hague Convention are also determined according to the law of habitual residence. In other words, in order to make use of the guarantees envisaged by the Hague Convention, the removal or the retainment of a child must be considered as unlawful according to the law of habitual residence of the child. The habitual residence stipulated in the Hague Convention is the place which corresponds to the actual living place of the child just before the specified action of removal. In addition, as terminology differs in each legal system in terms of the rights to retention, authorities, and duties covered by the rights in relation to the care and custody of children must be taken into consideration rather than how these rights are denominated in terms of the implementation of the Hague Convention. 

55.     In accordance with the Hague Convention, the contracting parties are liable to take all appropriate measures within their national borders so as to ensure the fulfillment of the aims of the Convention and to resort to the most rapid procedures to this end.  This liability is quite important for the fulfillment of the positive liabilities prescribed by the right to respect for family life in the relevant cases.

56.     In the presence of a request which falls within the scope of the Hague Convention, the judicial and administrative authorities of all contracting states are liable as per Article 11 of the Hague Convention to make necessary attempts as soon as possible in order to ensure the return of a child. The essential reason why certain time limitations are prescribed for the procedure of return is to prevent the child from getting used to the living conditions in the country to which s/he is abducted or in which s/he is retained, thus, the creation of a new living place and habitual residence for the child and the injury of the relations which need to be maintained between the child and the mother or father whose right to custody or personal relation is unlawfully removed.

57.     In a request for return within the scope of the Hague Convention, if the parent who keeps the child does not agree to an amicable settlement after the place of the child is determined, a legal remedy can be resorted to in order to ensure the return of the child in accordance with Article 7(2)(f) of the Convention. In terms of the implementation of the Convention in Turkey, all legal procedures are carried out by the Chief public prosecutor’s offices on behalf of the person, institution or organization that files a request for return. As per Article 6 of the Law No. 5717, the court that is competent in the cases for the return of the child is family courts or, in places where there is no family court, the civil courts of first instance and the court of the place where the child is found to be present has venue.

58.     While the rule within the scope of the Hague Convention is prompt to return, the judgment of compulsory return has a series of exceptions. These exceptions are specified in Articles 13 and 20 of the Convention and it is seen that the relevant provisions grant judicial authorities with the authority to dismiss the return of a child. The main aim of the Convention is to ensure the return of a child to his/her country of habitual residence and to ensure that judicial authorities of the habitual residence determine how the right to retention needs to be regulated by considering the interests of the child.  Nevertheless, in the face of the fact that there may be cases where valid grounds for removal or retention exist or where the return may seriously harm the child, it is understood that certain guarantee provisions were introduced in the implementation of the Convention through the mentioned provisions of exception.

59.     An exception which is commonly seen in practice is stipulated in Article 13(1)(b) of the Hague Convention.  The regulation in question grants the relevant judicial authorities with the authority to dismiss the return if it is found that his/her return will expose the child to a physical or psychological danger or put him/her in an intolerable situation in another way. However, the relevant provision cannot be used as a means of assessing the merits of the right to retention. In addition, the stated exception is not equivalent to the concept of the high interest of the child and this provision of exception also covers the consideration of sensitivities and differences towards certain beliefs and thoughts as a reason for dismissing the return. Classical manifestations of a significant risk or intolerable situation are cases involving the claims of child abuse (physical and/or sexual) and domestic violence. In such cases, the request for return may be dismissed depending on the ground that there is a significant risk or intolerable situation (See E. Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, § 27-34, http://www.hcch.net/upload/expl28). In this sense, it is understood that while maintaining the aim of ensuring the return with regard to the Hague Convention, the function of safe return judgments aimed at ensuring the safety of the child upon his/her return also requires a diligent examination and farsighted practice.

60.     The Hague Convention is, as a whole, based on the rejection of the case of international child abduction by all states and the thought that the best way of fighting against these cases at an international level is not to provide a safeguard in the form of legal recognition towards the situations that are formed by the mentioned cases.  For this reason, by also considering the aim of return which is the primary objective of the Hague Convention, it is obligatory to show utmost care for striking a sensitive balance between the mentioned provisions of exception and the interests of the child.  Establishment of this balance is closely related to the execution of the positive liabilities of the state with regard to the right to respect for family life specifically for the cases in question.

61.     In this respect, it needs to be accepted that a judgment which is delivered as regards the return of a child within the framework of the Hague Convention cannot be a judgment affecting the merits of the right to retention, that the requests for return within the scope of the Convention are not a lawsuit on the right to custody/retention, that a judgment of return is also not a judgment of the right to retention/custody and this judgment is only aimed at returning the child to the jurisdiction which is the most appropriate one for delivering a judgment the merits of the right to retention and visit. As is clearly specified in Article 19 of the Hague Convention, it is also specified in Articles 12 and 15 of the Law No. 5171 that a judgment of return is not a judgment with regard to the merits of the right to retention. In this respect, the additional procedure on the merits of the dispute as regards the right to retention will be carried out by the competent authorities of the habitual residence following the return of the child. Since, the habitual residence is the place where the child has lived for a certain period of time before removal and therefore, where most of the evidence in relation to the determination of the most appropriate period for the right to retention is present for the child.

62.     Solving the problems with regard to the interpretation of the legislation is primarily within the competence and responsibility of the courts of instance. This is also the case in circumstances where domestic law generally refers to an international law or international agreements.  The role of the Constitutional Court is limited to determining whether or not the interpretation of these rules are compatible with the Constitution.  For this reason, the Constitutional Court has the authority to review the procedure followed by the courts of instance and especially to determine whether or not the courts pay regard to the guarantees in Articles 20 and 41 of the Constitution while interpreting and implementing the provisions of the Hague Convention.

b. Existence of the Intervention

63.     In the present case, there is no doubt that the removal of the applicant's child from the country has an impact on the right to custody of the father and, accordingly, his right to establish a relationship with the child. In this sense, in terms of the application at hand, it is obvious that the restriction of the applicant's right to establish a relationship with his child through the dismissal of his request for the return of the child constitutes an intervention in the right to respect for family life.

c. Alleged Intervention

64.     In Article 20 of the Constitution, while some reasons for restriction which are understood not to be relevant to all aspects of this right are included, even the rights for which no specific reason for restriction has been prescribed have some restrictions stemming from the nature of the right. Moreover, it may also be possible to restrict these rights based on the rules stipulated in other articles of the Constitution. At this point, the measures of guarantee stipulated in Article 13 of the Constitution have a functional quality (Sevim Akat Eşki, B. No: 2013/2187, 19/12/2013, § 33).

65.     Article 13 of the Constitution with the side heading “Restriction of fundamental rights and freedoms” is as follows:

       “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

66.     The indicated provision of the Constitution is of fundamental importance in terms of restricting rights and freedoms and of the regime of guarantees, and it puts forth the criteria whereby the legislative body can restrict all the rights and freedoms contained within the Constitution. Since it is compulsory to implement the rules of the Constitution together and by taking into account the general rules of law within the framework of the principle of holism of the Constitution, it is clear that all guarantee criteria contained within the indicated regulation, notably the condition of restriction by law, also needs to be observed when determining the scope of the right covered in Article 20 of the Constitution (Sevim Akat Eşki, § 35).

i. Legality

67.     The criterion of restricting rights and freedoms by law has an important place in the constitutional jurisdiction. When there is an intervention in a right or freedom, the first matter that needs to be determined is whether or not there is a legal provision that authorizes the intervention, that is, if there is a legal basis for the intervention (Sevim Akat Eşki, § 36).

68.     With regard to the administrative and judicial procedure within the scope of the cases of international child abduction, there are detailed regulations in the relevant articles of the Hague Convention and the Law No. 5717. It is understood that there is a legal framework guaranteeing the protection of the applicant’s family life in practice and in an effective manner and that the practice which is the subject matter of the application as regards the dismissal of the request for the return of the child was carried out on the basis of the mentioned provisions. As it is understood that the judgments of the courts of instance are based on the Hague Convention ratified by Turkey and the Law No. 5717 which came into force within this scope, the judgment on the dismissal of the request for the return of the child has a sufficient legal basis.

ii. Legal Purposes

69.     It is stipulated in Article 41(2) of the Constitution that the state shall take the necessary measures and establish the necessary organization to protect children; in paragraph four the measures for the protection of the children against all kinds of abuse and violence shall be prescribed. With regard to the judgments on the dismissal of the request for the return of the child in terms of the present application, it is understood that the courts of instance have pursued a legitimate purpose in the form of ensuring the health and safety of the child and that, within this framework, the intervention which is the subject matter of the application was based on legitimate grounds.

iii. Necessity and Proportionality in the Democratic Order of the Society

70.     In order for an intervention which has a legal basis and pursues a legitimate purpose not to constitute a violation, it needs to comply with the criteria of guarantee of necessity in the democratic order of the society, without infringing upon the essence of the right and proportionality as stipulated in Article 13 of the Constitution.

71.     Modern democracies are regimes in which fundamental rights and freedoms are ensured and guaranteed in the broadest manner. It cannot be accepted that the restrictions which infringe upon the essence of fundamental rights and freedoms and restrict them in a considerable manner or render them completely non-exercisable accord with the requirements of the democratic order of the society. As the aim of a democratic state of law is to ensure that individuals exercise rights and freedoms in the broadest manner, it is necessary to predicate on an approach which brings the individual forward in legal regulations. For this reason, not only the measure, but also all elements of the imposed restrictions such as their conditions, reason, method and the remedies which are prescribed against the restriction should be assessed within the scope of the democratic order of the society (Serap Tortuk, B. No: 2013/9660, 21/1/2015, § 46).

72.     The essence of a right means the core which, when violated, renders the fundamental right and freedom in question meaningless and, with this aspect, provides a minimum inviolable area of guarantee for the individual in terms of each fundamental right. In this framework, it should be accepted that the restrictions which render the exercise of a right considerably difficult, make the right non-exercisable or removes it completely, infringes the essence of the right. In the context of the right to respect for family life, it is clear that the interventions which bear the consequence of the removal of this right, the rendering thereof non-exercisable or making the exercise thereof extremely difficult will also harm the essence of this right. The aim of the principle of proportionality is the prevention of the restriction of fundamental rights and freedoms more than necessary. In accordance with the judgments of the Constitutional Court, the principle of proportionality covers the elements of proportionality that define the availability which means that the means used for restriction is suitable for achieving the aim of restriction, the obligation which points the imperativeness of the restrictive measure in order to achieve the aim of restriction and proportionality that implies the means and aim are not within a disproportionate measure and the restriction does not impose an immoderate measure (Serap Tortuk, § 47; AYM, E.2012/100, K.2013/84, K.T. 4/7/2013).

73.     This balance which is valid in terms of the restriction of all fundamental rights and freedoms stipulated in the Constitution through Article 13 of the Constitution should also be taken into account in the restriction of the right to respect for family life. While it is possible to restrict the right to respect for family life, there should be no disproportionality between the legitimate aim prescribed in the restriction and the means of restriction, and attention should be paid to striking a fair balance between the interest which can be achieved through the restriction and the loss of the individual whose fundamental right and freedom is restricted. At this point, in order to determine whether or not a restriction has been made by complying with the indicated criteria, in the face of the legitimate aim which forms the basis of the measure which is claimed to have constituted an intervention and violated the right to respect for family life, it is necessary to take into consideration the severity of the sacrifice which was incumbent upon the individual and, especially when the disputes in relation to custody and personal relation are the case, to determine whether or not a fair balance was struck between the interests of the parent and the child.

74.     The decisive matter in this area is whether or not the state has struck a fair balance on this subject within the sphere of discretion granted to it among the competing interests of the mother, father and public order. However, it should be remembered that the interests of children are of a superior importance as regards the matters related to the right to custody and personal relation while striking this balance.  Nevertheless, the parent’s need for having a regular relationship with the child is another important factor that needs to be taken into consideration while striking a balance among the rights in question (İlker Ensar Uyanık v. Turkey, § 52).

75.     Every child has the right to maintain a direct and regular personal relation with his/her parent unless otherwise required by his/her interests. The interest of the child points to the need for maintaining ties with his/her family except for the case where the family in question is unhealthy, on one hand, and covers the maintenance of the development of the child in a healthy and safe environment on the other hand. The same thought is also valid for the Hague Convention and the Convention requires, as a rule, that the abducted child be promptly returned unless his/her return exposes the child to a severe risk of physical or psychological harm or puts him/her in any other intolerable situation and aims to sustain family ties in this way.

76.     In cases which are similar to the present case, the ECtHR also accepts that the assessment as regards the interests of the child and the parent must be conducted by national judicial authorities, but states that the trial procedure in relation to dispute needs to be fair and allow the relevant parties the opportunity to exercise all their rights and specifies that, in this respect, it has to determine whether or not national courts have conducted an in-depth examination of the situation of the family and particularly, of all factual, emotional, psychological, material and medical factors and whether or not a reasonable assessment and balancing have been made with regard to the interests of the relevant persons by way of determining the high interests of the child within an application on the return of the abducted child (İlker Ensar Uyanık v. Turkey, § 52; Neulinger and Shuruk v. Switzerland, § 139).

77.     Although it is clear that the judicial practice which is the subject matter of the application is based on the aforementioned legitimate basis, it is necessary that the restriction which is understood to have constituted an intervention in the family life of the individual does not render the indicated right meaningless by infringing upon its essence.

78.     Although public authorities have a discretionary power in the process of the restriction of a right within the scope of the legitimate purposes pursued, the indicated discretionary power has a separate scope for each case. Depending on elements such as the quality of the guaranteed right or legal interest and the importance thereof in terms of an individual, the scope of this authority becomes narrower or broader and, especially when positive liabilities are the case, the type and scope of these liabilities require that a separate assessment be conducted for each case.

79.     As for disputes that are similar to the present case, public authorities are liable to take measures which will facilitate cooperation between the mother and father. While the relevant public authorities have a certain sphere of discretion in striking a balance among the competing interests of the child, mother, father and public order, the matter which is of importance here is whether or not the relevant authorities have taken all sorts of measures required by the special circumstances of the case so as to facilitate the reunion of the family.

80.     Undoubtedly, the determination as to what the high interest of the child means is the most important element that needs to be taken into consideration in these cases. In this respect, it is obvious that the judicial bodies which are directly in contact with the relevant parties are more advantageous in determining the indicated matter. Therefore, the duty of the Constitutional Court is not the regulation and determination of the matter of necessity of return in the requests for return with regard to the cases of international child abduction by replacing the courts of instance, but to review, within the scope of the relevant constitutional norms, whether or not the courts of instance act within the framework of the discretionary power granted thereto. In this context, the duty of the Constitutional Court in terms of the present case is not to replace the courts of instance which examine whether or not  there is any risk of exposure to a severe psychological harm in case of the return of the child to the USA within the context of Article 13 of the Hague Convention .  Nevertheless, the Constitutional Court has the authority to determine whether or not the courts of instance protected the guarantees in Article 20 of the Constitution by way of establishing the balance that needs to be struck among the interests of the mother, father, child and the public while interpreting and implementing the provisions of the Hague Convention.  For this reason, it is necessary to conclude whether or not the conclusion reached by the courts of instance complied with Article 20 of the Constitution or, in other words, whether or not the judgment on the dismissal of the return of the child to the USA was an intervention that was proportionate to the applicant’s right for respect for family life.

81.     Within the scope of the provisions of exception of return as stipulated in the Hague Convention, the determination of the necessity of return as well as whether or not a measure is sufficient in such cases should be evaluated together with the prompt application of the measure. Because the cases with regard to custody and the establishment of a personal relationship should be concluded in an immediate manner as the passing of time could bear non-recoverable consequences for the relations between the child and the parent with which s/he does not live together.   In line with this acknowledgment, the Hague Convention has prescribed a series of measures in order to ensure the prompt return of a child who is wrongfully removed from a country or retained in a Contracting State. As for the disputes in relation to the right to respect for family life, in the fulfillment of positive liabilities, ensuring that the decision-making process is a fair process through which the relevant persons can submit their opinions in a complete manner is important as well as the speedy performance of the relevant administrative and judicial procedures. In this framework, the liability in relation to the procedure in the form of conducting the relevant judicial processes in an immediate manner, in a way that is open to the participation of parties and in compliance with the procedural requirements of the right to a fair trial need to be added into the content of the positive liability assessment with regard to the right to respect for family life within the scope of Article 20 of the Constitution.

82.     In terms of disputes related to relations between parents and children, the ECtHR handles together the requirements that the trials in question contain the procedural requirements of the right to a fair trial and that the appropriate measures for the union of the relevant parent and the child are taken and does not make any separate assessment with regard to Article 6 of the Convention in most cases (Amanalachioai v. Romania, App. No:4023/04, 26/5/2002, § 63, İlker Ensar Uyanık v. Turkey, § 33).

83.     The courts of instance are obliged to act in a way to ensure the sustainability and effectiveness of the relations within the scope of family life in the assessment of the relevant requests for return. In this sense, the Constitutional Court which needs to assess whether or not the courts of instance exercised their discretionary power in a reasonable and prudent way especially with regard to the proportionality of the intervention has to examine whether or not the grounds alleged to justify the intervention were relevant and sufficient in this context (For a judgment of the ECtHR in the same vein, see İlker Ensar Uyanık v. Turkey, § 54).

84.     The courts of instance need to put forth the reasoning of their discretion in detail so as to allow the relevant parent to make use of the opportunity of resorting to an effective remedy and predicate the reached conclusions on sufficient and objective data such as scientific opinions and reports with a sufficient clarity (For the judgments of the ECtHR in the same vein, see Savinyv. Ukraine, App. No: 39948/06, 18/12/2008, §§ 56-58; Gluhakovic v. Croatia, § 62).

85.     From the assessment of the judicial process which is the subject matter of the application, it is seen that a request for return was filed by the applicant within the scope of the Hague Convention with the claim that the child in common was removed by his/her mother from the USA which was his/her habitual residence and that s/he was not allowed to return. Moreover, it is seen that the request was referred by the Department of State of the USA to the Directorate General for International Law and Foreign Relation of the Ministry of Justice which was the Turkish Central Authority within the scope of the Hague Convention and that a notification was sent on 19/1/2012 by the Directorate General to the Chief Public Prosecutor’s Office of Ankara for the initiation of the return procedures of the child. It is also seen that an action for return was filed by the Chief Public Prosecutor’s Office of Ankara through the indictment of 11/6/2012 based on the file of the 7^th Family Court of Ankara No. E.2012/757.  It is understood that following the preliminary proceedings report drawn up by the court on 16/6/2012, two hearings were held and the dispute was resolved on 1/10/2012 and that as the ground for the dismissal, it was stated that the parties had a child in common, that the parties lived in the USA and that the defendant came to Turkey with the child in common for the wedding of her sister. It was also stated that thereupon, she filed for divorce with the 9^th Family Court of Ankara No. E.2011/1268, that within the scope of the relevant case, it was ruled that temporary custody of the child be granted to the mother and that a personal relation be established between the applicant father and the child. It was stated that the conditions for prompt return as regulated in Article 12 of the Hague Convention did not materialize and that a complete personal conviction occurred with regard to the dismissal of the request by considering the age of the child and his/her dependence on the mother. It is also understood that the judgment became final on 16/5/2013 by going through the remedies of appeal and correction.

86.     Within this framework, it is understood that the administrative and judicial process with regard to the request for return was completed within approximately one year and six months starting from 3/11/2011 on which the request was referred to the central authority of the USA and that the trial process including the stages of appeal and correction process was less than one year. Although the applicant does not have any allegation with regard to the prompt execution of the return process, it is seen that required diligence was shown by the relevant public authorities in relation to the prompt completion of the process in question. Nevertheless, the applicant alleges that facilities with regard to the procedure were not provided in terms of the trial by stating that the judgment was delivered without examining the allegations of the parties thoroughly during the trial process, conducting the necessary expert examination and hearing the parties and the local public prosecutor's participation on behalf of the Ministry of Justice was not ensured. From the examination of the relevant trial documents, it is seen that the applicant, through the petition of 20/7/2012, requested to participate in the lawsuit process for the return of the child, that subsequently, he submitted his allegations and defenses in writing by submitting a bill of answer on 27/7/2012 and essentially relied on the documents submitted by him in the process executed before the Directorate General. It is also seen that during the trial process, the parties were granted a period for the submittal of their evidence at the hearing of 12/9/2012, that however, it was stated that no additional evidence was submitted by the counsel of the applicant at the subsequent hearing and they repeated their statements at the previous stages as they had previously submitted their evidence within the file.  Although the evidence of the expert was also relied upon by the applicant's counsel in the annex of the bill of answer, it is understood that an expert examination was not resorted to by the court of the first instance which ruled that the request needed to be dismissed by considering that the conditions of prompt return as regulated in Article 12 of the Hague Convention did not materialize and by also considering the age of the child and his/her dependence on the mother.  Although the applicant also stated that the failure to ensure the local public prosecutor's participation on behalf of the Ministry of Justice  in the trial process was a deficiency with regard to the procedure, it is seen that no explanation was brought forward in relation to the negative impact of the relevant procedural deficiency on the trial process and its consequence and that the judgment of the court of the first instance was appealed by the relevant Chief Public Prosecutor's Office in terms of aspects relating to procedure and merits. In this sense, it is understood that the courts of instance delivered a judgment as a result of a trial procedure through where the applicant had legal representation, to submit his evidence and to object to the allegations of the opposing party.

87.     Nevertheless, the applicant alleges that the provisions of the Hague Convention with regard to merits and procedure were not taken into consideration in the action for return, that the reasonings of the judgments of the courts of instance were contrary to the principles stipulated in the Hague Convention and that accordingly, his personal relationship with his child was prevented. Although it was stated in the judgment of the court of first instance that the request needed to be dismissed by considering that the conditions of prompt return as regulated in Article 12 of the Hague Convention did not materialize and by also considering the age of the child and his/her dependence on the mother, it is seen that no explanation was brought forward as to whether or not the presence of the child in Turkey was lawful as per the relevant provisions of the Convention, where the habitual residence to be taken as the basis for the judgment of return was and how it was determined and in which way the conditions of return in Article 12 of the Convention did not materialize. It is stated that in the writ of approval of the Court of Cassation that it was understood that the conditions for refusing to return did not materialize and that Article 13(1) (b) of the Hague Convention was taken into consideration by the court of the first instance. When it is considered that no examination was conducted by the courts of instance with regard to the relevant provisions of exception and their applicability in the present case and no explanation was made in relation to this matter although it was stated in the appeal petition of the relevant Chief Public Prosecutor’s Office that the action was settled according to the provisions of custody while the determination of habitual residence and the return of the child to his/her country of habitual residence were prescribed in the provisions of the Hague Convention and the Law No. 5717 and that subjective criteria such as the young age of the child and his/her dependence on the mother which had no place in application were relied upon and the conclusion was reached accordingly in the case and in spite of the objections of the applicant in the same vein, it is understood that the reasonings of the judgments were not relevant and sufficient in terms of the right to respect for family life and that the intervention in this right was not proportionate.

88.     Due to the reasons explained, it should be ruled that the applicant’s right to respect for family life guaranteed in Article 20 of the Constitution was violated.

Celal Mümtaz AKINCI disagreed with this opinion.

89.     It has been concluded that the applicant’s right to respect for family life guaranteed in Article 20 of the Constitution was violated and within the framework of the determinations made in this scope, it has not been deemed necessary to separately evaluate the applicant’s allegation as to the fact that his right defined in Article 36 of the Constitution was violated.

3. Article 50 of the Law No. 6216

90.     The applicant requested a judgment as to the determination of the violation and the retrial of the dispute.

91.     In the opinion of the Ministry of Justice, no opinion was expressed as regards the removal of the consequences of the violation.

92.     Article 50(2) of the Law No. 6216 with the side heading “Judgments” is as follows:

       “If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding a retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, a compensation can be adjudged in favor of the applicant or the remedy of filing a case before general courts can be shown. The court which is responsible for holding the retrial shall deliver a judgment based on the file, if possible, in a way that will remove the violation that the Constitutional Court has explained in its judgment of violation and the consequences thereof.”

93.     Although it was determined that Article 20 of the Constitution was violated in the present application when it is considered that the judgment established with regard to the merits of the right to custody and personal relation as a result of the divorce case filed with the file of the 9^th Family Court of Ankara No. E.2011/1268 became final on 13/10/2014 by going through the courts of instance, that through the relevant judgment, it was ruled that a personal relation is established between the applicant father and the child for certain periods by also considering the terms as regards the age of the child. Since the Hague Convention aimed to guarantee the interest as regards the maintenance of the relation between the mother or father who alleged to be the victim of the act of abduction and the child in common during the period when no evaluation was made with regard to the merits of the custody of the child yet, in this sense, the merits of custody and personal relation was concluded through the Court judgment which was understood to have become final during the process of application. With this aspect, it was not possible by way of ruling on retrial to reinvigorate the interest which was harmed in terms of the maintenance of the relations in the relevant interim period, that it was determined through the document with the case number of 11D010650 which was submitted by the counsel of the defendant mother to the individual application file and was stated to have belonged to the divorce case filed by the applicant before the Supreme Court of California that the matter to be resolved thereby was the division of property of the marriage as the dispute in relation to the right to custody and visit was settled by the Turkish Courts that were considered to be competent, as no legal benefit has been considered in the holding of a retrial for the removal of the violation and the consequences thereof, it is necessary to rule on the dismissal of the applicant’s request as to the holding of a retrial.

94.     Although non-pecuniary damages is an appropriate remedy for the removal of the consequences of the violation which is the subject matter of the application, it has not been deemed necessary to rule on this matter as no request was filed by the applicant with regard to compensation.

95.     It should be ruled that the trial expenses of TRY 1,698.35  in total composed of the fee of TRY 198.35 and the counsel’s fee of TRY 1,500.00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

V.       JUDGMENT

In the light of the reasons explained, it is held on 2/7/2015

A.     

                   1. UNANIMOUSLY that the applicant’s allegation as to the fact that Article 20 of the Constitution was violated is ADMISSIBLE,

                   2. BY MAJORITY OF VOTES and with the dissenting opinion of Celal Mümtaz AKINCI that his right to respect for family life guaranteed in Article 20 of the Constitution WAS VIOLATED,

B.       UNANIMOUSLY that his request for the holding of a retrial be REJECTED,

C.       UNANIMOUSLY that the trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel’s fee of TRY 1,500.00 which were made by the applicant be PAID TO THE APPLICANT,

D.       UNANIMOUSLY that the payment be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment,

E.       UNANIMOUSLY that a copy of the judgment be sent to 7^th Family Court of Ankara, the 2^nd Civil Chamber of the Court of Cassation and the Directorate General for International Law and Foreign Relations of the Ministry of Justice for information.

DISSENTING OPINION

The applicant applied to the Department of State within the scope of the Hague Convention with the allegation that the child in common whose mother was a Turkish citizen was removed from the USA which was his/her habitual residence and taken to Turkey and was not allowed to return and this Department referred the request to the Directorate General for International Law and Foreign Relations of the Ministry of Justice As a result of the initiatives of the Directorate General, an action for return was filed before the 7^th Family Court of Ankara through the indictment of the Chief Public Prosecutor’s Office of Ankara. This action was dismissed on the ground “that the request needs to be dismissed by considering that the parties had a child in common in the USA where they lived, that the defendant woman came to Turkey with her child for the wedding of her sister, that thereupon, she filed a divorce case before the 9^th Family Court of Ankara, that within the scope of this case, it was ruled that temporary custody of the child be granted to the mother and that a personal relation be established between the applicant and the child, that the conditions for prompt return as regulated in Article 12 of the Hague Convention did not materialize and by considering the age of the child and his/her dependence on the mother”.

When the application file is examined, it is understood that the wife of the applicant came to Turkey with her child for the wedding of her sister with the consent of her husband (within his knowledge) and filed for divorce before the 9^th Family Court of Ankara while she was in Turkey, that custody of the child in common was granted to the claimant mother in a temporary fashion in the meantime, that at the end of the case, it was ruled that the parties divorce, custody of the child be granted to the mother and a personal relation be established between the child and the father and that the judgment was upheld by the Court of Cassation.

 In this case, it does not seem possible to mention that the child was abducted to Turkey without the consent of his/her father. In order for the Hague Convention to take effect, it is necessary that a child is abducted and retained against the consent of his/her parent.  The child came to Turkey with the consent of the applicant father and a divorce case was filed before the 9^th Family Court of Ankara after s/he arrived therein, custody of the child who was three months old at the time was temporarily granted to the mother during the case and at the end of the case, it was ruled that custody be granted to the mother by considering that the child needed the care and affection of the mother and that a personal relation be established between the child and the father.  As there is no de facto and de jure child abduction, it is not possible to implement the Hague Convention. If the child had been brought (abducted) to Turkey against the consent of the father, then the Hague Convention would have directly taken effect and it would have been necessary to discuss a ruling for the return of the child as per the Convention. The judgments of temporary and permanent custody delivered by the 9^th Family Court of Ankara within the framework of the right to sovereignty prevented the Hague Convention on the Civil Aspects of Child Abduction from taking effect and being implemented. The court accurately referred to this matter in its judgment on the ground “...that the request needs to be dismissed by considering that the conditions of prompt return as regulated in Article 12 of the Hague Convention have not materialized and by also considering the age of the child and his/her dependence on the mother... ”.

Due to the reasons explained, I have not agreed with the majority opinion as to the effect that the right to respect for family life was violated as a result of the examination conducted in terms of merits also by way of considering the provisions of the Hague Convention.