Tag Archives: Turkey

International Child Abduction – A Growing Legal Maze?

The recent case of Marianne Grin in Russia has drawn attention to international child abduction and the legal failings relating to these cases.  After losing custody, the mother of four took her children to Russia, from their home in Italy, and is refusing to return them to their father. Like many child abduction cases, it has an international dimension – the children have dual American/Russian citizenship and are Italian residents. As the complexities of international child abduction continue to grow, within an increasingly globalised world, there is a growing  need for laws to govern these issues arising from cross border relationships.

The Grin case is scarily similar to that of Elke Mellersh. Ms Mellersh abducted her children in the previous year and fled to Turkey, she then committed suicide after taking their lives in November 2011. She had disappeared along with her children, fearing they would be taken from her, after the German courts had declared her  mentally unstable, and had taken steps to revoke her custody. Like the Italian courts, the German courts strongly favour the mother in custody battles and it is not easy for the mother to lose custody. In Germany, women gain exclusive custody in almost 100% of cases where children are under the age of 6, and in cases with older children this drops no lower than 95%.

As in the Grin case, the reporting of the  story was radically different in Turkey, the ethnic home country of Ms Mellersh, than it was in the UK. Despite also being a German case, the story went largely unreported in Germany, where privacy laws prevent newspapers from covering suicide cases. Ms Mellersh, like Ms Grin, also appeared to be escaping from court rulings she disagreed with. In both cases, allegations of abuse levied against the father, and numerous other people, were proven by the courts to be unfounded. She was a German citizen with Turkish heritage, the children were dual nationals of both Germany and Britain. None of them had ever lived in Turkey, but like Grin she had tried to reinvent herself as a “persecuted mother” fleeing to her home country. She was portrayed as such in the Turkish media, which took a nationalist stance and sensationalised the case without addressing or seeking factual information.

The most painful thing about this case is the possibility that theirs deaths could have been prevented. Undoubtedly, there were huge failings in Germany and in Turkey, where the children had been kept illegally for some time before their deaths. What would have happened if their whereabouts was known earlier? Would the Turkish authorities have complied with both German and international laws to protect the children? Would the Turkish authorities have taken or attempted to take the necessary steps to ensure their safe return? There are several laws in place which applied to the Mellersh case, such as the Hague Convention Against Child Abduction. The difference in the Grin case is that the whereabaouts of the children is known and these laws can still be enforced. Turkey which is also part of the Hague Convention is notably slow at complying with the convention effectively in such cases. Russia can still prove that it is able to implement relevant legislation and uphold the convention and it’s values by returning the children to Italy.

In his article in the Huffington Post, Harris Silver raised the issue of the importance of laws within and between countries? I agree that these laws are hugely important, especially in a world where transnational cooperation is becoming an essential part of legal practice. In relation to child abduction, international treaties are often essential due to the cross border nature of a growing number of these cases. That said, the application and enforcement of these laws is vital if they are to be effective in applying to those it seeks to protect.

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Turkey’s Violations of ECHR Highest for 3 Years

When Nicolas Bratza, the head of the European Court of Human Rights (ECtHR), released the figures for ruling against states in 2011 last week, Turkey was again the country with the highest number of violations of the European Convention on Human Rights (ECHR). With 159 cases that violated the ECHR, this is the 3rd year in a row Turkey has been at the top of the list, painting a dim picture of Turkey’s human rights record. Russia (with 121 cases) and the Ukraine (105) were not lagging far behind. Britain fared comparably well with only 8 violations. However David Cameron’s comments earlier in the week stating that the ECtHR was in danger of becoming a “small claims court”, were not so well received by the Strasbourg based court.
Despite not being an EU Member State, the ECHR, drafted in 1950, places Turkey under the jurisdiction of the ECtHR. Although Turkey signed the protocols of the convention, it has yet to ratify a number of them. Nevertheless, in 1987 Turkey started allowing individuals to file applications and apply to the ECtHR individually, 3 years later it also recognised the compulsory jurisdiction of the court.
The majority of Turkey’s violations concerned the length of proceedings and the right to a fair trial set out by Article 6 of the ECHR. There are currently 16,000 ongoing cases against Turkey, the second-highest number of cases filed against a country under the ECtHR’s jurisdiction. The Turkish government claims it has made considerable progress in improving the human rights situation in the country. Justice Minister Sedat Ergin stated that a series of reforms had been adopted in recent years and insisted that similar legal amendments will continue to improve Turkey’s human rights record. Last year, after a public referendum a number of constitutional reforms were implemented, many relating to the judiciary. These reforms introduced the right to petition the Constitutional Court for human rights violations and established the Ombudsman Office for grievances regarding the misconduct of government agencies and employees.