Cusan and Fazzo v. Italy

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 170

January 2014

Cusan and Fazzo v. Italy - 77/07

Judgment 7.1.2014 [Section II]

Article 14

Discrimination

Inability for married couple to give their legitimate child the wife’s surname: violation

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to reform domestic legislation and/or practice to enable the legitimate child of a married couple to be given its mother’s surname

Facts – The applicants are a married couple. In April 1999 their first child was born. Their request that she be entered in the register of births, marriages and deaths under her mother’s surname was dismissed and the child was registered under her father’s surname. In 2012 the parents were authorised by the Milan Prefect to add the mother’s surname to the child’s name.

Law – Article 14 taken together with Article 8: Under the domestic legislation, “legitimate children” were given the father’s surname at birth. The domestic legislation allowed for no exception to this rule. Admittedly, a presidential decree provided for the option of changing one’s surname, and in the present case the applicants had been authorised to add to the child’s surname. However, it was necessary to distinguish between the decision on a child’s surname at his/her birth and the possibility of changing a surname in the course of one’s life. Persons in similar situations, namely the two applicants, respectively the child’s father and mother, had therefore been treated differently. Unlike the father, the mother had been unable to have her surname transmitted to the new-born, in spite of her spouse’s agreement.

The Court had had the opportunity to examine somewhat similar issues in the Burghartz, Ünal Tekeli and Losonci Rose and Rose cases. The first concerned the dismissal of a husband’s request to have a surname – his wife’s – placed before his own surname. The second concerned the rule in Turkish law whereby a married woman could not use her maiden name alone after marriage, although a married man retained his surname as it was prior to marriage. The case of Losonci Rose and Rose concerned the requirement, under Swiss law, to submit a joint request to the authorities where both spouses wished to take the woman’s surname, failing which the husband’s surname was automatically attributed to the couple as the new family name after marriage. In all of those cases, the Court had reiterated the importance of moving towards gender equality and eliminating all discrimination on grounds of sex in the choice of surname. In addition, it considered that the tradition whereby family unity was reflected by giving all of its members the father’s surname could not justify discrimination against women.

The conclusions were similar in the present case, in which the choice of the surname of “legitimate children” was determined solely on the basis of discrimination arising from the parents’ sex. The rule in question required that the given surname was to be that of the father, without exception and irrespective of any alternative joint wish on the part of the spouses. While the rule that the husband’s surname was to be handed down to “legitimate children” could be necessary in practice and was not necessarily incompatible with the Convention, the fact that it was impossible to derogate from it when registering a new child’s birth was excessively rigid and discriminatory towards women.

Conclusion: violation (six votes to one).

Article 41: no claim made.

Article 46: The Court had found a violation of Article 14 of the Convention, taken together with Article 8, on account of the fact that it was impossible for the applicants, when their daughter was born, to have her entered in the register of births, marriages and deaths under her mother’s surname. This impossibility arose from a flaw in the Italian legal system, whereby every “legitimate child” was entered in the register of births, marriages and deaths under the father’s surname as his/her own family name, without the option of derogation, even where the spouses agreed to use the mother’s surname. In consequence, reforms to the Italian legislation and/or practice were to be adopted, in order to ensure their compatibility with the conclusions of the present judgment, and to secure compliance with the requirements of Articles 8 and 14 of the Convention.

(See Burgharz v. Switzerland, 16213/90, 22 February 1994; Ünal Tekeli v. Turkey, 29865/96, 16 November 2004, Information Note 69; and Losonci Rose and Rose v. Switzerland, 664/06, 9 November 2010, Information Note 135)

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