AS TO THE ADMISSIBILITY OF
Application No. 16213/90
by Susanna BURGHARTZ and Albert SCHNYDER BURGHARTZ
against Switzerland
The European Commission of Human Rights sitting in private on
19 February 1992, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G.H. THUNE
SirBasil HALL
MM.F. MARTINEZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 January 1990
by Susanna BURGHARTZ and Albert SCHNYDER BURGHARTZ against Switzerland
and registered on 26 February 1990 under file No. 16213/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The first applicant, born in 1956, has dual Swiss and German
nationality. The second applicant, born in 1956, is a Swiss citizen.
The applicants, a married couple, are both historians residing in Basel
in Switzerland. Before the Commission the applicants are represented
by Ms. E. Freivogel, a lawyer practising at Binningen in Switzerland.
Particular circumstances of the case
The applicants have resided in Basel since 1975. Before their
marriage in 1984, the first applicant's name was Susanna Maria Simone
Burghartz; the second applicant's name was Albert Johann Schnyder.
In 1984 the applicants married in the Federal Republic of
Germany. In accordance with German law, the wife's name was declared
to be the family name. The second applicant declared in addition that
he would put his own name before the family name. After the marriage,
therefore, the first applicant bore in the Federal Republic of Germany
the name Susanna Burghartz, the second applicant the name Albert
Schnyder Burghartz.
When the Swiss Civil Status Registry (Zivilstandsamt) recorded
as the applicants' family name Schnyder, the applicants requested the
Council of State (Regierungsrat) of the Canton of Basel-Landschaft to
be allowed to adopt Burghartz as the family name and Schnyder Burghartz
as the second applicant's name. This request was refused by the
Council of State on 6 November 1984.
On 5 October 1984 the Swiss Civil Code (Zivilgesetzbuch) was
amended with regard to the effects of marriage, inter alia as regards
the family name of the married couple. The amendment entered into
force on 1 January 1988.
On 26 October 1988 the applicants requested the Department of
Justice (Justizdepartement) of the Canton of Basel-Stadt to be allowed
to adopt as the family name Burghartz and to permit the second
applicant to put his birth name before the family name, i.e. Schnyder
Burghartz.
On 12 December 1987 the Department of Justice refused this
request. It found that the applicants had not mentioned any serious
disadvantages deriving from the family name Schnyder. Moreover, the
Swiss Civil Code did not contain intertemporal provisions with regard
to Section 30 para. 2 of the Code (see below Relevant domestic law).
Thus, the applicants could not on the basis of this provision, after
their marriage, request the adoption of the wife's name as the family
name. On the other hand, according to the text of Section 160 para.
2 of the Civil Code the possibility for the wife to put her name before
the husband's name was clearly limited to the wife, and the husband had
no corresponding right (see Relevant domestic law).
The applicants then filed an appeal (Berufung) with the Federal
Court (Bundesgericht). In their appeal they complained in particular
of a violation of Sections 30 and 160 of the Civil Code as well as
Section 8a of the Final Provisions (Schlusstitel) to the Civil Code.
The applicants also invoked Section 4 para. 2 of the Federal
Constitution.
The Federal Court gave its decision on 8 June 1989; the decision
was served on the applicants on 27 July 1989.
Insofar as the applicants complained that they were not allowed
to adopt the wife's maiden name as the family name, the Court upheld
their appeal. It found on the one hand that Section 30 para. 2 of the
Civil Code was inapplicable as it clearly only referred to fiancés, not
to married persons. On the other hand the Court considered that in the
present case there were important reasons within the meaning of Section
30 para. 1 of the Swiss Civil Code. The Court noted inter alia the
proximity of Basel to the Federal Republic of Germany and the
particular situation of the applicants, namely their age and
professional sphere in the light of which the decision of the
Department of Justice could not be considered satisfactory. The Court
therefore determined that the applicants were permitted to adopt
Burghartz as the family name.
Insofar as the applicants requested, with reference to Section
160 para. 2 of the Civil Code, that the second applicant put his former
name before the family name, i.e. Schnyder Burghartz, the Court
dismissed the appeal. The Court recalled the preparatory materials of
Section 160 para. 2 of the Civil Code. It noted that from the outset
a free choice between the husband's and the wife's name had been ruled
out as it would have run against tradition while still forcing one
spouse to give up his or her name. The decision of the Federal Court
continues:
"The meaning, purpose and also the history of Section 160 para. 2 of the Civil Code all militate against an interpretation running counter to the text and thus against its implicit application to the husband who agreed to adopt as the family name the woman's name. It is understandable that the applicants invoke the principle of equality and argue in favour of an interpretation conforming with the Constitution ... In addition, it can hardly be overlooked that the man, who loses his original name due to the choice according to Section 30 para. 2 of the Civil Code or the change according to Section 30 para. 1 of the Civil Code, will also be interested, for reasons connected with his right of personality, in having his previous name put first. This can nevertheless not alter the fact that the original view expressed in the Council of State, according to which Section 160 para. 2 should be drafted independently of the sex, was not taken up despite intensive discussion in both Chambers. Thus, seeing that the legislator, by adopting Section 160 para. 2 in its present wording, has in the end clearly decided in favour of a solution specifically making a distinction on the basis of sex, an interpretation relying primarily on Article 4 para. 2 of the Federal Constitution is excluded." "Sowohl Sinn und Zweck als auch die Entstehungsgeschichte des Art. 160 Abs. 2 ZGB sprechen gegen eine dem Wortlaut zuwiderlaufende Auslegung und somit gegen dessen sinngemässe Anwendung auf den Mann, welcher der Wahl des Frauennamens zum Familiennamen zugestimmt hat. Zwar ist verständlich, dass sich die Berufungskläger auf den Grundsatz der Rechtsgleichheit berufen und einer verfassungskonformen Auslegung das Wort reden ... Ueberdies lässt sich kaum übersehen, dass auch der Mann, der seinen angestammten Namen durch die Wahl gemäss Art. 30 Abs. 2 ZGB oder die Abänderung gemäss Art. 30 Abs. 1 ZGB verliert, ebenfalls aus Gründen des Persönlichkeitsrechts am Voranstellen seines bisherigen Namens interessiert ist. Das vermag aber daran nichts zu ändern, dass die ursprünglich im Ständerat vertretene Auffassung, wonach Art. 160 Abs. 2 ZGB geschlechtsunabhängig ausgestaltet werden sollte, trotz eingehender Diskussion in beiden Räten nicht mehr aufgegriffen worden ist. Hat sich der Gesetzgeber mit der Aufnahme des Art. 160 Abs. 2 ZGB in seiner heutigen Formulierung letzlich eindeutig für eine ge- schlechtsspezifische Lösung entschieden, kommt eine in erster Linie von Art. 4 Abs. 2 BV ausgehende Auslegung nicht in Frage." Relevant domestic law 1.Section 4 para. 2 of the Swiss Federal Constitution states: "Men and women have equal rights. The law ensures their equality particularly in the family, in education and at work. Men and women are entitled to equal pay for equal work." "Mann und Frau sind gleichberechtigt. Das Gesetz sorgt für ihre Gleichstellung, vor allem in Familie, Ausbildung und Arbeit. Mann und Frau haben Anspruch auf gleichen Lohn für gleichwertige Arbeit." Section 30 paras. 1 and 2 of the Swiss Civil Code states: "1. The Government of the Canton of residence may permit a person to change the name, if there are important reasons. 2.The request of the fiancés to have as from their marriage the wife's name as the family name, must be permitted if there are reasons commanding respect." "1. Die Regierung des Wohnsitzkantons kann einer Person die Änderung des Namens bewilligen, wenn wichtige Gründe vorliegen. 2.Das Gesuch der Brautleute, von der Trauung an den Namen der Ehefrau als Familiennamen zu führen, ist zu bewilligen, wenn achtenswerte Gründe vorliegen." Section 160 paras. 1 and 2 of the Civil Code states: "1. The husband's name shall be the spouses' family name. 2.However, the bride may declare before the civil registrar that she wishes to have her previous name put before the family name." "1.Der Name des Ehemannes ist der Familienname der Ehegatten. 2.Die Braut kann jedoch gegenüber dem Zivilstandsbeamten erklären, sie wolle ihren bisherigen Namen dem Familiennamen voranstellen". Section 8a of the Final Provisions to the Civil Code states: "A woman who married under the previous law may, within a period of one year after the new law enters into force, declare before the civil registrar that she will put the name which she had before marriage before the family name". "Die Frau, die sich unter dem bisherigen Recht verheiratet hat, kann binnen Jahresfrist seit Inkrafttreten des neuen Rechts gegenüber dem Zivilstandsbeamten erklären, sie stelle den Namen, den sie vor der Heirat trug, dem Familiennamen voran". 2.Section 43 para. 1 of the Federal Judiciary Act (Organisations- gesetz) provides the appeal (Berufung) as a remedy to complain to the Federal Court inter alia of a violation of Federal law, such as in the present case the Civil Code. However, this provision expressly reserves the public law appeal (staatsrechtliche Beschwerde) as a remedy to complain about alleged violations of constitutional rights. In practice, the alleged violation of Convention rights must also be raised in a public law appeal. However, whatever remedy is employed, the Federal Court's power of examination is governed by Section 113 para. 3 of the Swiss Federal Constitution (Bundesverfassung) which provides as follows: "In all these cases the statutes and decrees of general applicability enacted by the Federal Assembly and the international treaties which it has approved are authoritative for the Federal Court." "In allen diesen Fällen sind jedoch die von der Bundesversammlung erlassenen Gesetze und allgemein verbindlichen Beschlüsse, sowie die von ihr genehmigten Staatsverträge für das Bundesgericht massgebend." Section 113 para. 3 thus prevents the Federal Court, and all Swiss authorities, when considering the legality of the application of a Federal Statute in an individual case, from examining whether the Statute conforms with the Constitution or the Convention. COMPLAINTS The applicants complain that, whereas a woman who after marriage has the husband's name as the family name is permitted to put her previous name before the family name, the husband is denied the same right if, as in the applicants' case, the wife's previous name is the family name. The applicants rely on Article 8 of the Convention, and Article 14 of the Convention taken together with Article 8. The applicants point out that the second applicant's original name no longer appears in various registers and documents. His university also refuses to issue the certificate of his doctoral thesis with his previous name put before his family name. Thus, the connection of identity to his previous publications is no longer maintained. The applicants submit that the right to respect for private life within the meaning of Article 8 of the Convention comprises the use of a person's name. In the case of the second applicant the function of identity which his name provided has been lost. This is a serious interference which is unjustified and disproportionate. Under Article 14 of the Convention the applicants submit that there is no objective justification for this discrimination according to sex. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 26 January 1990 and registered on 26 February 1990. On 8 April 1991 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application. The Government's observations were received by letter dated 20 June 1991. The applicants' observations in reply are dated 30 September 1991. THE LAW 1.The applicants complain that the second applicant, who has agreed to using the wife's maiden name as the family name, is denied the right to put his previous name before the family name. The applicants submit that a woman in the same situation is permitted this right. Thus, if a woman after marriage has the husband's name as the family name, she may put her previous name before the family name. The applicants submit that this is an unjustified interference with their right to respect for private life within the meaning of Article 8 (Art. 8) of the Convention. They also rely on Article 14 of the Convention taken together with Article 8 (Art. 14+8) of the Convention. Article 8 (Art. 8) of the Convention states: "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." Article 14 (Art. 14) of the Convention states: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 2. The Government submit that Article 5 of Protocol No. 7 (P7-5) is a lex specialis to Article 8 (Art. 8) of the Convention. When ratifying that Protocol Switzerland extended the right of individual petition under Article 25 (Art. 25) of the Convention to the Protocol. However, it also made a reservation to Article 5 of Protocol No. 7 (P7-5), in the light of which, it is submitted, the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The applicants contend that the Swiss reservation to Article 5 of Protocol No. 7 (P7-5) aims solely at ensuring the unity of the family name in respect of children. This is not the issue arising in the present case and the reservation is therefore irrelevant. Article 5 of Protocol No. 7 (P7-5) states: "Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children." The reservation made by Switzerland when ratifying Protocol No. 7 states, insofar as relevant: "Following the entry into force of the revised provisions of the Swiss Civil Code of 5 October 1984 the provisions of Article 5 of the Additional Protocol No. 7 (P7-5) shall apply subject to ... the provisions of Federal law concerning the family name (Article 160 CC and 8a final section CC) ..." In dealing with the Government's objection the Commission must examine the applicants' complaints in the light of the rights which they have invoked. Their first complaint is that the second applicant cannot put his own name before the family name and that this violates their right to respect for private life within the meaning of Article 8 (Art. 8) of the Convention. However, the right to respect for private life is not enshrined in Article 5 of Protocol No. 7 (P7-5) which grants to spouses the equality of rights and responsibilities of a private law character between them. In this respect therefore the right guaranteed by Article 8 (Art. 8) of the Convention is distinct from the right enshrined under Article 5 of Protocol No. 7 (P7-5). The applicants complain, secondly, that in respect of this interference with their right to respect for private life there was a discrimination contrary to Article 14 (Art. 14) of the Convention. As regards the interpretation of this provision the Commission recalls the Convention organs' case-law according to which "it is as though (Article 14 (Art. 14) of the Convention) formed an integral part of each of the Articles (of the Convention) laying down rights and freedoms" (Eur.Court H.R., Belgian Linguistic Case, Series A no. 5, p. 34, para. 9). Thus, insofar as the right enshrined in Article 8 (Art. 8) of the Convention is distinct from Article 5 of Protocol No. 7 (P7-5), it also remains distinct when taken together with Article 14 (Art. 14) of the Convention. The reservation made by Switzerland to Article 5 of Protocol No. 7 (P7-5) does not therefore concern the Commission's examination of the present application under Articles 8 and 14 (Art. 8, 14) of the Convention. It follows that the latter cannot be declared incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3.The Government further submit that the applicants have not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. It is recalled that the applicants only filed an appeal with the Federal Court. However, according to Section 43 of the Federal Judiciary Act, an appeal serves to complain about a violation of Federal law; in order to complain about a violation of constitutional rights, and the Convention, a public law appeal must be employed. Indeed, the Federal Court did not in its decision of 8 June 1989 deal with Articles 8 and 14 (Art. 8, 14) of the Convention. The applicants point out that the Federal Court dealt in substance with their complaints under Articles 8 and 14 (Art. 8, 14) of the Convention. The Commission notes the applicants' complaints according to which in their case the application of the Swiss Civil Code unjustifiably interfered with their right to respect for private life within the meaning of Article 8 (Art. 8) of the Convention, and also constituted discrimination contrary to Article 14 (Art. 14) of the Convention. The Commission considers that according to Section 113 para. 3 of the Federal Constitution all Swiss authorities, including the Federal Court, are bound by a Federal Statute, such as the Civil Code, in that they are prevented from examining, in the application of that Statute, whether it conforms with the Federal Constitution or the Convention. This is confirmed in the present case by the fact that the Federal Court, in its decision of 8 June 1989, declined to examine whether the application of Section 160 para. 2 of the Civil Code complied with the constitutional right to equality of sexes under Article 4 para. 2 of the Federal Constitution. Thus, the applicants did not have an effective remedy at their disposal to raise before the Swiss authorities the complaints they are now raising before the Commission. It follows that the application cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. 4.The Commission further considers that the second applicant continues to remain in the same position in that he cannot put his own name before the family name. Thus, the situation of which the applicants complain is a continuing one. The application cannot therefore be rejected for non-compliance with the time-limit of six months according to Article 26 (Art. 26) of the Convention. 5.The Government submit that the first applicant cannot claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention, since the application only concerns the second applicant's name. In fact, the first applicant is able to have her own name as the family name. The applicants reply that they both want the second applicant to continue to have his name before the family name. The first applicant in fact feels responsible for the fact that, because her name has become the family name, the second applicant may be discriminated against and lose the right to use his name. The Commission considers that the application has been brought by a married couple and concerns the names of both applicants, namely the question whether the husband must use as the only name the family name, which is the wife's name, or whether he may put his own name before the family name. The use of these names thus affects both applicants, as confirmed in the decision of the Federal Court of 8 June 1989 which mentions both applicants as parties to the proceedings before that Court. Both applicants can therefore claim to be victims within the meaning of Article 25 (Art. 25) of the Convention. 5. The Government further question the applicability of Article 8 (Art. 8) of the Convention to the present case. Reference is made in particular to the case of Hagmann-Hüsler v. Switzerland (No. 8042/77, Dec. 15.12.77, D.R. 12 p. 202). With regard to further issues of the well-foundedness of the case, the Government reserve their right to file further observations. The applicants submit that Article 8 (Art. 8) of the Convention is applicable to the present case. The fact that the second applicant has agreed to having the first applicant's name as the family name does not mean that he has renounced all rights. In fact, he only agreed to accept that family name on condition that he could put his own name first. The Commission, having regard to the parties' submissions under Articles 8 and 14 (Art. 8, 14) of the Convention, considers that these complaints raise complex issues of fact and law which require an examination of the merits. The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION ADMISSIBLE, without prejuding the merits of the case. Secretary to the CommissionPresident of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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