Communicated on 1 December 2017
FIFTH SECTION
Application no. 39017/12
Daniela Nikolaeva FARTUNOVA and Petko Borisov KOLENICHEV
against Bulgaria
lodged on 4 June 2012
STATEMENT OF FACTS
The applicants, Ms Daniela Nikolaeva Fartunova and Mr Petko Borisov Kolenichev, are Bulgarian nationals who were born in 1981 and 1978 respectively and live in Sofia. They are represented before the Court by Ms Margarita Ilieva, legal director of the Bulgarian Helsinki Committee.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are an unmarried couple who live together as a family with their two common children, born in 2011 and in 2014 respectively.
The second applicant, the father of the children, recognised his paternity of the children by means of a declaration, in accordance with the Family Code. In line with both parents’ wishes that their children bear the family name of the mother, at the time of making the declaration in respect of his paternity of the first child, the father stated before a notary his wish that the child be registered bearing her mother’s family name. The notary refused to certify that declaration, referring to section 14 of the Civil Registration Act (see the “Relevant domestic law and practice” section below). As a result, the applicant’s first daughter was registered by a civil status officer as bearing her father’s family name, contrary to the parents’ wishes. As Bulgarian law requires that all children born to the same parents carry the same family name, the applicant’s second child, who was likewise recognised by the father, was also registered with the father’s family name, contrary to the wishes of both parents.
The applicants explain their wish by reference to the fact that the first applicant, the mother, has no male relatives who could carry on her family name through their offspring and that if she cannot pass it on to her own children, there will be no trace of the family’s name in future generations. In addition, the applicants consider that the mother’s family name carries positive connotations, while the father’s family name provokes certain negative associations, which they wish to avoid being attached to their children.
B. Relevant domestic law and practice
1. Forming of family names of individuals, of married persons and of their children
Under section 14(1) of the Civil Registration Act (“the Act”), the family name of every individual is the family name or the patronymic name of the father, with an ending ”-ov” or “- ev” in its gender-appropriate form, unless family-, ethnic- or religion-related traditions of the parents require otherwise.
Under section 14(2) of the Act, the family name at the time of registering a marriage is formed in accordance with the rules of the Family Code 2011 (“the Family Code”). According to Article 12 of the Family Code, at the time of registering their marriage each of the parties states whether they will keep their own family name, whether they would adopt the family name of the other spouse or whether they would add it to their own family name. Children who have common parents have to be registered with the same family name (section 14(3) of the Act).
Section 19 of the Act provides that a change in the first, patronymic or family name of an individual can be done, following a request in writing by that individual, on condition that his or her name is mocking, disgraceful or publicly unacceptable, as well as in cases when important circumstances so require.
2. Recognition of paternity
In cases where the father has not acknowledged paternity, the child bears the family name of the mother or the name of the mother’s father (section 15 of the Act). Where the father has acknowledged paternity after the birth certificate has been drawn up, the names of the child are to be formed in accordance with the rules of the Act (section 16(1)).
Under Article 65 (1) of the Family Code, a man can acknowledge paternity of a child by means of a declaration made in writing and in person before a civil status officer, or a declaration certified by a notary and deposited with the civil status officer.
Under Article 577 (1) in conjunction with Article 275 (1) of the Code of Civil Procedure 2007 (“the 2007 Code”), a notary’s refusal to certify a document can be appealed against before the relevant regional court within a month’s period. When the court quashes the refusal, the certification is considered having taken place on the date of lodging the related request (Article 577 (3) of the 2007 Code).
Within seven days of the making of the declaration for acknowledgement of paternity, the civil status officer informs the Directorate for Social Assistance, as well the other parent and the child, if the latter is fourteen or older. The other parent and the child can challenge the acknowledgement in writing before the civil status officer within three months of being informed about it. If no such challenge is brought, the civil status officer records the acknowledgement of paternity in the child’s birth certificate (Article 66 (1) of the Family Code). Refusals to record the acknowledgement of paternity can be challenged in court (Articles 145 (2) and 149 (2) of the Code of Administrative Procedure 2006).
3. Relevant Bulgarian case-law
The courts have systematically interpreted section 14(1) of the Act as containing imperative rules on how the family names of individuals are to be formed. Thus, in a decision of 2009 the Supreme Court of Cassation (the SAC) held that the change of the family name of a child so that the latter bears the family name of the mother would be contrary to the legal principle about forming the family name of individuals determined in an imperative manner in section 14(1) of the Act. According to that principle, the family name is formed by the family or patronymic name of the father, and not that of the mother (see реш. № 580 на ВКС от 18.06.2009 г. по гр. д. № 6394/2007). In another decision of 2012 the SAC held that the constant practice of the courts in respect of section 14(1) of the Act was categorical and clear in that the family name of every individual was the family or patronymic name of the father; therefore, this did not allow for a child’s family name to be changed by adding the family name of his mother to that of his father (see реш. № 939 на ВКС от 2.07.2012 г. по гр. д. № 44/2012). In yet another decision of 2011 the SAC held that under the law children bore the family name of the father and it was not compatible with Bulgarian tradition for them to bear the family name of the mother. It was unacceptable under Bulgarian legislation, in particular the Act, to arrive at a result which contradicted the legal norms related to naming as well as to change people’s names in a way that created confusion or was misleading in respect of that person’s origin (реш. № 1550 на ВКС от 12.12.2011 г. по гр. д. № 1618/2011).
In another 2009 decision the SAC held that the legislator, having taken into consideration the importance of names for individuals, for their family and for society more broadly, had determined with imperative legal provisions the manner in which names had to be formed. According to section 14 of the Act, the family name of Bulgarian citizens was formed by taking the family or patronymic name of that person’s father. Parents’ divorce and lack of care by a father towards a child do not fall among the exceptions allowing a change of name for the child as indicated in section 19 of the Act (реш. № 333 на ВКС от 14.04.2009 г. по гр. д. № 528/2008). The Plovdiv Regional Court came to a similar conclusion in a final decision of 2017 in a case where the claimant sought to change his family name, in particular from that of his legally presumed father, whom he claimed he did not know, to that of his biological father, who he claimed had brought him up and with whom he had a close relationship. The court held that the legislation concerning citizens’ names comprised imperative legal provisions. If the change in name sought in this case were allowed, that would bring about a lack of clarity and confusion as regards the claimant’s origin, would eliminate the established origin of the claimant despite him having a known father, and would be contrary to the legal principle in and imperative character of section 14(1) of the Act. As to whether “important circumstances” were present to justify such a change in name under section 19 of the Act, the court held that the mere wishes of the claimant did not constitute circumstances capable of justifying a change in a family name, the latter having been formed in accordance with the relevant imperative norms. “Important circumstances” were those with objective characteristics, lying beyond the will of the claimant, and not part of his subjective wishes and considerations (реш. № 1337 на ОС Пловдив от 3.11.2017 г. по гр. д. № 1618/2011).
COMPLAINTS
Both applicants complain under Article 8 of the Convention that it is impossible for them to freely choose a family name for their children. The first applicant also complains under Article 14, in conjunction with Article 8 of the Convention, about the impossibility for her, an unmarried woman whose children have been legally recognised by their father, to pass on to those children her own family name, unlike the father, an unmarried man, whose family name is automatically passed on by law to their common children.
QUESTIONS TO THE PARTIES
1. Did the applicants have at their disposal effective domestic remedies in relation to their Article 8 complaint that they could not freely choose the name of their children? If so, did they exhaust them?
2. Has there been an interference with both applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? The parties are invited to address these questions with reference to the wide margin of appreciation afforded to Member States when regulating the use of names and bearing in mind what appears to be the absolute impossibility for the applicants, an unmarried couple, to freely choose the family name of their children.
3. Has the first applicant suffered discrimination on the ground of her gender, contrary to Article 14 of the Convention, read in conjunction with Article 8? In particular, has the first applicant been subjected to a difference in treatment in comparison to the treatment afforded to unmarried men who have legally recognised their children and whose family name is automatically passed on to their children? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?
Full & Egal Universal Law Academy