CASE OF P.R. v. AUSTRIA

FIFTH SECTION

CASE OF P.R. v. AUSTRIA

(Application no. 200/15)

JUDGMENT

STRASBOURG

21 November 2019

This judgment is final but it may be subject to editorial revision.

In the case of P.R. v. Austria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 22 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 200/15) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr P.R. (“the applicant”), on 26 December 2014. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2.  The applicant was represented by Mr F. Kuch, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr. H. Tichy, Head of the International Law Department at the Austrian Ministry for Europe, Integration and Foreign Affairs.

3.  The applicant complained that the Austrian authorities’ refusal to issue a new diploma certificate (Sponsionsurkunde) after his change of surname had violated his right to private life under Article 8 of the Convention.

4.  On 3 May 2016 notice of the complaint concerning Article 8 of the Convention was given to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1968 and lives in Vienna.

6.  Upon completing his legal studies at Karl-Franzens-University, Graz the applicant was awarded the academic degree of Magister iuris in a graduation ceremony (Sponsion) in February 1997 and was issued a diploma certificate (Sponsionsurkunde).

7.  In 2010 the applicant lodged a request with the Vienna Municipality (Magistrat der Stadt Wien) to have his name changed from S. to R. In his application, he relied on section 2(1)(10) of the Name Amendment Act of 1988 (Namensänderungsgesetz). That provision provides, as one possible reason for having one’s last name changed, the pre-emption of unacceptable economic and social disadvantages. He maintained in his application that he was being discriminated against due to the “oriental origin” of his name, and provided empirical studies in order to support his claim.

8.  On 12 February 2010 the Vienna Municipality granted the applicant’s request. That decision was based on sections 1, 2 and 7 of the Name Amendment Act; however, the wording of the decision gave no further reasoning.

9.  Subsequently, the applicant lodged a formal request with the University of Graz on 6 May 2010 to be issued a rectified diploma certificate or a notice of award (Verleihungsbescheid) bearing his new surname, in accordance with the Vienna Municipality’s decision of 12 February 2010.

10.  On 19 August 2010 the university’s Director of Studies (Studiendirektor) issued a decision rejecting the applicant’s request. He held that there were no legal grounds for issuing a new document. The applicant had been awarded his academic degree in line with the relevant provisions of the General University Studies Act (Allgemeines Hochschulstudiengesetz), as in force at the time in question. The subsequent change of the applicant’s surname did not have retroactive effect. Ever since the implementation in August 1997 of new provisions of the University Studies Act (Universitäts-Studiengesetz), academic degrees had been awarded in the form of a notice of award. Such a notice of award could not be issued as this would imply a second award of the same academic degree to the applicant.

11.  On 11 November 2011 the Senate of the Karl-Franzens-University of Graz (Senat der Karl-Franzens-Universität) dismissed an appeal lodged by the applicant. It found that the right to hold an academic degree was linked to the person to whom the degree was awarded; a subsequent change of the person’s name did not have an effect on that right. The possible reasons for a change of surname listed in section 2(1)(10) of the Name Amendment Act clearly applied to the applicant’s situation; however, the decision of the Vienna Municipality of 12 February 2010 did not impose a duty on the University of Graz to amend diploma certificates.

12.  The applicant lodged a complaint with the Constitutional Court. He submitted that the refusal to amend the diploma certificate or to issue a notice of award in his new surname violated, inter alia, his rights under Article 8 of the Convention. He had applied for a change of surname relying on section 2(1)(10) of the Name Amendment Act, which prescribes as a reasonable ground for such change the pre-emption of unacceptable economic and social disadvantages. In the past he had been the victim of discrimination because of the “oriental origin” of his surname and he had suffered such disadvantages. Accordingly, he had changed his name in compliance with the law, as in force at the time in question. However, he could not submit a diploma certificate to a potential employer without being forced to reveal his former surname. The need to submit the Vienna Municipality’s decision of 12 February 2010 together with the diploma certificate would require explanations and would eventually lead to social stigmatisation. The university’s refusal to amend the certificate had therefore violated his rights under Article 8 of the Convention.

13.  On 11 June 2012, the Constitutional Court declined to deal with the applicant’s complaint owing to the unlikelihood of it succeeding. It found that there were no sufficient reasons to assume that the provisions under consideration would violate the applicant’s rights, especially given that there were laws in place, such as the Non-Discrimination Act (Gleichbehandlungsgesetz), to pre-empt discriminatory treatment on the part of potential employers.

14.  At the applicant’s request the Constitutional Court remitted the case to the Administrative Court, which dismissed the complaint on 26 June 2014. Examining the provisions in force at the time of the applicant’s graduation, the Administrative Court found that the right to use an academic degree was linked to the person to whom that academic degree had been awarded, regardless of whether that person’s name was subsequently changed. There was no subjective right for a person to have all previously issued documents changed after a change to that person’s name. There was no provision compelling the university authorities to take specific steps in the event of a change in surname after a student had finished his studies, or after that student’s academic degree had been awarded. The Constitutional Court had already stated in its decision of 11 June 2012 that there were no sufficient reasons to assume that the provisions applicable to the case would violate the applicant’s rights under the Convention. Therefore, and on the basis of the applicant’s complaint, as formulated, the Administrative Court likewise did not see any reason to institute proceedings for review of the compliance of the law with the Constitution (Gesetzesprüfungsverfahren) with the Constitutional Court.

II.  RELEVANT DOMESTIC LAW

A.  Relevant provisions concerning the change of name

15.   The Name Amendment Act of 1988 regulates changes to the forenames and surnames of Austrian nationals. A reasoned request for a change of someone’s name shall be granted if it is not contrary to public interests of fundamental importance or to private interests deserving protection. Section 2 of the Name Amendment Act provides possible reasons for changing a surname. Under paragraph 1 (10) of that provision, one of the recognized reasons for changing one’s surname is if “the applicant credibly claims that a change of surname is necessary in order to avoid unacceptable [economic or social] disadvantages ... and those disadvantages cannot be avoided in other ways”. Under section 2 (1)(11) of the Act, a surname can be changed if the applicant “wishes to have a different name for other reasons”.

16.  A decision granting a change of name is constitutive and has ex nunc effect. It entitles and requires the person who had his or her name changed to use his or her new name.

17.  Section 41 of the Personal Status Act 2013 (Personenstandsgesetz) provides that any change to somebody’s personal status data (Personenstandsdaten) must be entered in the Central Personal Status Register (Zentrales Personenstandsregister). Under section 2(2), a person’s name and his or her academic degree constitute general personal-status data. Under section 53 of the Personal Status Act 2013 the relevant authorities must issue upon request personal-status documents (Personenstandsurkunden) (birth certificates, marriage and registered‑partnership certificates and death certificates) reflecting the current content of the register.

18.  As far as identity documents (namely passport or an identity card) are concerned, the relevant laws provide for the possibility of the issuance of a new document after a change of name. Upon request, such documents can be issued, including the person’s academic degree.

B.  Provisions concerning the award of an academic degree

19.  Under sections 34 and 35 of the General Higher Education Studies Act of 1966 (Allgemeines Hochschulstudiengesetz; in force until 31 July 1997) an academic degree was to be awarded in the course of a ceremony (Sponsion). The award of an academic degree had to be certified (beurkundet). The certificate had to contain, inter alia, the surname and forename of the person receiving the degree and his or her date of birth.

20.  On 1 August 1997 the University Studies Act (Universitäts‑Studiengesetz) entered into force. Under section 66, which has a similar wording to that of section 87 of the now applicable University Act 2002 (Universitätsgesetz), the academic degree shall be awarded within one month after fulfilment of all requirements through the issuing of a formal written decision (Bescheid).

21.  Under section 116 of the University Act 2002 the unjustified use of an academic degree is an administrative offence punishable with a fine of up to 15,000 euros (EUR).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

22.  The applicant complained that the Austrian authorities’ refusal to issue an amended diploma certificate showing his new name amounted to a violation of his right to respect for his private life under Article 8 of the Convention, which reads as follows:

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

3. 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 wellbeing 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.”

A.  Admissibility

1.  Applicability of Article 8 of the Convention

23.  The Government argued that the applicant’s claim did not fall within the scope of Article 8 of the Convention. While according to the Court’s case-law the selection of a person’s name fell within the ambit of Article 8 of the Convention, academic degrees were not part of the name but rather a facultative addition to it, indicating acquired qualifications forming a prerequisite for certain offices and professions. Thus, there had been no interference with Article 8 of the Convention as the addition of a degree to one’s name had no identification function. Furthermore, the applicant was in any event free to use the awarded academic degree. He was entitled to change his name and to use the new name. He could provide full proof to everyone that he was legally entitled to hold the academic degree “Magister iuris” by presenting a current excerpt from the Central Personal Status Register. As a result, the refusal to issue a new diploma certificate did not constitute an interference with Article 8.

24.  The applicant maintained that Article 8 of the Convention not only included the right to self-identification and self-definition but also comprised the individual’s right to decide which personal information to reveal to others. He argued that even though his application to change his name had been granted, he was still forced to reveal his former surname when applying for a job in order to provide proof of his qualifications. As a result he needed to explain himself and was exposed to social stigmatisation. The applicant’s job application would not be considered if he did not submit the Vienna Municipality’s decision granting his change of surname. The Lawyer’s Chamber, for instance, had insisted on the submission of the decision in order for him to be registered as a trainee lawyer and had not accepted his passport which showed his new name and his degree.

25. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018, with further references). The notion of private life does not in principle exclude activities of a professional or business nature (ibid., §§ 100-109).

26.  Issues concerning an individual’s name fall under the right to private life (see Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII, and Henry Kismoun v. France, no. 32265/10, § 25, 5 December 2013). As far as official documents are concerned, the Court has held that the withholding of identity documents or the refusal to issue new identity documents that are needed in everyday life for example in order to identify oneself vis-à-vis public authorities, to receive medical care or to find employment amounted to an interference with Article 8 of the Convention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 97, ECHR 2003‑IX (extracts) and M. v. Switzerland, no. 41199/06, § 58, 26 April 2011).

27.  In the present case, the Court observes that it is undisputed between the parties that the applicant has been granted the right to change his name and to bear his new name.

28.  The Court observes that in certain countries, such as Austria, importance is attached to academic degrees in general and it is common to address a person with his or her academic degree even outside professional circles. An academic degree thus may be closely related to a person’s name. Furthermore, an academic degree in itself, as the result of a successful educational career, has to be considered a relevant aspect of one’s personal identity.

29.  While it is true that through the refusal to issue a new or amended diploma certificate, the applicant’s right as such to bear his academic degree has not been infringed, he has nevertheless been refused a generally accepted document indicating his new name to prove his academic degree. The Court finds it likely that the applicant, as a graduated lawyer, will face several situations where he will be asked to provide proof of his academic degree by presenting an official document issued by the university. Moreover, the unjustified use of an academic degree even constitutes an administrative offence in Austria (see paragraph 21 above). Thus, requiring the applicant to prove that he lawfully uses an academic degree by presenting his diploma certificate showing his old name is in conflict with his right, recognized by the State, to have his name changed.

30.  The Court is therefore ready to accept that the Austrian authorities’ refusal to amend the diploma certificate or issue a new one does affect the applicant’s enjoyment of his right to respect for his “private life”. His complaint thus falls within the scope of Article 8 of the Convention.

2.  Exhaustion of domestic remedies

31. The Government submitted that the applicant’s complaint under Article 8 of the Convention was inadmissible for non-exhaustion.

32.  They conceded that the applicant had not received an new or amended diploma certificate. However, since 2014 he could have had his new name and his academic degree entered in the Central Personal Status Register and could have received an excerpt from this register. The excerpt served as full proof vis-à-vis all authorities and courts and was also suitable to prove the award of an academic degree vis-à-vis a private person.

33.  As far as the applicant complained of having to submit his diploma certificate with the original name to potential employers and thus suffering professional, economic and social disadvantages, the Government argued that he could have claimed compensation under the Equal Treatment Act (Gleichbehandlungsgesetz) or the Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz) if he had in fact been treated disadvantageously because of his ethnic origin. He could also have sought support from the Austrian Ombudsperson’s Office for Equal Treatment (Gleichbehandlungsanwaltschaft) which offers advice concerning discrimination and the Equal Treatment Commission (Gleichbehandlungskommission) which examines alleged violations of the equal treatment requirement.

34.  Furthermore the Austrian legal system offered sufficient protection against any disparagement of ethnic groups and negative stereotyping through the administrative offence of discrimination on the grounds of race, colour, national or ethnic origin, religious belief or disability under Article III Introductory Law to the Administrative Laws 2008 (Einführungsgesetz zu den Verwaltungsgesetzen 2008) and the criminal offence of the incitement of hatred (Verhetzung) under section 283 of the Criminal Code.

35.  The applicant contested these submissions and claimed that he had exhausted domestic remedies since his complaint did not concern anti‑discrimination regulations and provisions but his rights under Article 8 of the Convention. The provisions relied upon by the Government only concerned available remedies in order to receive damages after encountering discriminatory treatment. The applicant, however, relied on a positive obligation of the State to ensure his rights under Article 8 by preventive measures.

36.  The Court finds it established that while the applicant may (if necessary) be able to provide proof of his academic degree in everyday life by presenting an official document like an excerpt from the Personal Status Register showing his new name and his academic degree, such a document would not suffice as proof in particular situations. When applying for employment in a legal profession, applicants may often be required to provide proof of their law degree through the submission of an official graduation document issued by the university. The Government has also not contested the applicant’s submissions that he had to present his diploma certificate at the lawyer’s chamber in order to be admitted as a trainee lawyer.

37.  The provisions relied upon by the Government concerning the prohibition of discriminatory treatment and the imposition of sanctions might be suitable to meet discriminatory treatment but there are no effective remedies concerning the applicant’s specific complaint that he is unable to provide evidence of his academic degree without revealing his former last name.

38.  The complaint is therefore not inadmissible for non-exhaustion. The Court further notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1. The parties’ submissions

39.  The applicant submitted that while the domestic authorities had respected his right to choose his name, the national authorities had nevertheless failed to protect his right to respect his private life, by refusing to issue a diploma certificate bearing his new name. As a result he was compelled to reveal his former last name to potential employers against his will. The refusal to issue a new diploma certificate had severe consequences for his professional and private life in the economic and social field. Potential employers, especially in legal professions, required the submission of a diploma certificate or a notice of award as proof of the completion of law studies. The applicant thus had to reveal regularly his former last name by presenting his diploma certificate together with the decision on his change of name when applying for employment. The disclosure of his former “oriental-sounding” last name put him at a disadvantage. He had changed his name to avoid discriminatory treatment on the labour market and in society in general. The change of his name should have enabled him to make effective use of his right to “informational self-determination” so that he would no longer be forced to explain himself and talk about his ethnic origin. Since there was no justified public interest in the disclosure of the applicant’s former surname, the refusal of the Austrian authorities to issue a diploma certificate showing the applicant’s new surname constituted a violation of Article 8 of the Convention.

40.  The Government submitted that even assuming that there had been an interference with the applicant’s rights under Article 8 of the Convention, any such interference was necessary and proportionate. The proceedings in question did not concern the use of a name, but the right to hold an academic degree. This right was not exclusively subject to a person’s self-definition but dependent on the successful completion of studies. The award of an academic degree should ensure legal certainty for the graduate and third persons and rule out the possibility of circumvention. It lay within the State’s margin of appreciation to determine how to provide proof of the successful completion of studies. At the time the applicant finished his studies, academic degrees were awarded by a general administrative act of the university and the award was certified in an official diploma certificate. Under the current legal provisions (see paragraph 20 above), academic degrees were awarded in the form of a constitutive written decision. Both these ways were suitable to create the necessary legal certainty and to exclude any possible abuse. At the same time the Austrian legal system did not impose tight limits on the use of names and academic degrees. The applicant was free to bear his academic degree and could provide full proof of this degree with the help of an excerpt from the Central Personal Status Register.

2.  The Court’s assessment

41.  The Court finds that the applicant’s complaint falls to be examined from the standpoint of whether or not the respondent State has failed to comply with a positive obligation to ensure the applicant’s right to respect for his private life, in particular by providing for an amended diploma certificate or a duplicate with his new name (see, mutatis mutandis, Aktaş and Aslaniskender v. Turkey, nos. 18684/07 and 21101/07, § 43, 25 June 2019).

42.  Regarding positive obligations under Article 8 of the Convention, the relevant general principles are summarised in Hämäläinen v. Finland [GC], no. 37359/09, § 65‑66, ECHR 2014 with further references):

“65. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160, and Roche, cited above, § 157).

66. The notion of “respect” is not clear cut, especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002‑VI). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States. Some of them relate to the applicant. They concern the importance of the interest at stake and whether “fundamental values” or “essential aspects” of private life are in issue (see X and Y v. the Netherlands, cited above, § 27, and Gaskin, cited above, § 49), or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 (see B. v. France, 25 March 1992, § 63, Series A no. 232‑C, and Christine Goodwin, cited above, §§ 77‑78). Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question here is whether the alleged obligation is narrow and precise or broad and indeterminate (see Botta v. Italy, 24 February 1998, § 35, Reports 1998‑I), or about the extent of any burden the obligation would impose on the State (see Rees v. the United Kingdom, 17 October 1986, §§ 43‑44, Series A no. 106, and Christine Goodwin, cited above, §§ 86-88).”

43.   In the present case a very specific aspect of the applicant’s private life is concerned. Even though it cannot be said that fundamental values or essential aspects of private life have been impaired, the Court, nevertheless, accepts that the impact of the lack of a new or amended diploma certificate on the applicant as a graduated lawyer is significant, while the alleged positive obligation can be considered relatively narrow and precise and the possible impact on the State does not appear to be severe (see Hämäläinen, cited above, § 66 in fine).

44.  While it is true that there is a general interest of the public in ensuring legal certainty and excluding possibilities of circumvention when it comes to the award of academic degrees, the present case does not concern the award of a degree but merely the amendment of a certificate which had already been granted in the past. The Court cannot see how the issuing of an amended diploma certificate or a duplicate with the new name could adversely affect the reliability of such a document or of the award of the academic degree itself. The Court does not disregard the fact that such measures may constitute a certain administrative burden; however, this in itself cannot justify an unconditional refusal of the applicant’s request, since the university seems free, for example, to impose charges and to put strict requirements in place for such services. In fact, the refusal of the applicant’s request was based purely on formal considerations, without taking into account the specific reasons advanced by him for his request, and therefore without conducting any balancing exercise of the competing interests (compare Aktaş and Aslaniskender v. Turkey, cited above, § 47). Moreover, the Court cannot discern any competing private interests that could justify the refusal of the issuance of an amended certificate.

45.  In light of the foregoing considerations the Court concludes that the respondent State has failed to comply with its positive obligation to ensure the applicant’s right to respect for his private life by failing to provide him with a new or amended diploma certificate.

There has therefore been a violation of Article 8 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

47.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.

48.  The Government contested this claim, deeming it unsubstantiated and excessive.

49.  There is no doubt that the applicant has suffered some distress as a result of the refusal to issue a new or amended diploma certificate, which is not sufficiently compensated by the finding of a violation of the Convention. The Court therefore considers it reasonable to award the applicant EUR 1,000 under this head. It dismisses the remainder of his claim.

B.  Costs and expenses

50.  The applicant also claimed EUR 3,340 for the costs and expenses incurred in the domestic proceedings.

51.  The Government contested the claim.

52.  According to Rule 60 of the Rules of Court, an applicant must submit itemised particulars of his claims, supported by relevant documents, failing which the Court may reject the claims in whole or in part. Regard being had to the documents in its possession and the above criteria, the Court rejects the claim for the costs and expenses sustained at the domestic level, as the applicant has failed to adduce itemised bills for the costs and expenses allegedly incurred. As the applicant has not claimed the reimbursement of the costs incurred in the proceedings before it, the Court does not make any award in that respect either.

C.  Default interest

53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 8 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 November 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia WesterdiekYonko Grozev
RegistrarPresident

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