FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10163/02
by Mika and Jaana JOHANSSON
against Finland
The European Court of Human Rights (Fourth Section), sitting on 7 November 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 6 February 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Mika Johansson and Ms Jaana Johansson, are Finnish nationals, born in 1970 and 1967, respectively. They live in Rajamäki. They are represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants had a son, born on 2 May 1999. The parents chose the name “Axl Mick” for him. On 8 July 1999 the Population Registration Authority (maistraatti, magistraten) of Hyvinkää refused the applicants’ application to register this forename under section 32b, subsections 2(1) and 3(2) of the Names Act as its form did not comply with the Finnish name practice.
The applicants appealed to the then Uusimaa County Administrative Court (lääninoikeus, länsrätten, later replaced by the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen). They argued, inter alia, that the name “Axl” was common in Denmark and Norway, and it was also used in Australia and the United States. It was pronounceable in the Finnish language and was not incompatible with the Finnish name practice any more than the name “Alf”. Furthermore, there were at least three persons with that name registered in the Population Information System (väestötietojärjestelmä, befolkningsdatasystemet) of Finland. Furthermore, they might move abroad later.
The state representative appointed by the State Provincial Office (lääninhallituksen määräämä asiamies, ombudsman förordnad av länssyrelsen) was invited to submit an opinion to the County Administrative Court. In his opinion, the said name should have been be accepted for registration as nowadays due to international contacts and co-operation, registration of a name could not be rejected on the sole basis that it was contrary to the domestic name practice.
In its submissions to the court the Advisory Committee on Names (nimilautakunta, nämnden för namnärenden) considered that the proposed name was incompatible with the Finnish name practice and that the applicants had not adduced adequate reasons for choosing it.
In response to these observations, the applicants maintained that they should be allowed to name their son “Axl” as the Population Registration Authority had registered various other forenames, such as “Minja”, “Tertta”, “Jonina”, and “Dersim”, which, in the applicants’ view, were modified forenames and contrary to the Finnish name practice in their forms.
Their appeal was rejected by the Helsinki Administrative Court on 3 October 2000. The court referred to the Names Act, according to which a name could, although being incompatible with domestic name practice, be accepted if a person on the basis of nationality, family relations or some other special circumstance had a connection with a foreign State and the proposed forename accorded with the name practice of that State. The name could also be accepted for other valid reasons. The court concluded that the arguments presented by the applicants were not sufficient for accepting the name.
They appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) claiming, inter alia, that it was open to interpretation whether the name “Axl” was contrary to the Names Act or not, as allegedly some priests and Population Registration Authorities would have accepted the name. Furthermore, at least three Finnish persons already carried that name.
On 20 September 2001 the Supreme Administrative Court upheld the decision, rejecting their appeal.
B. Relevant domestic law
The Names Act (Act No. 694/1985, as amended by Act No. 253/1991), contains provisions on forenames. Section 32b of the said Act provides:
“General obstacles to permitting a forename: ...
2. In the absence of a reason mentioned in subsection 3 the following categories of names cannot be accepted:
1) a name which by virtue of its form or spelling is incompatible with domestic name practice; ...
3. A forename which does not comply with the requirements in subsection 2 may, however, be permitted:
1) on the grounds of a religious tradition;
2) if a person on the basis of nationality, family relations or some other special circumstance has a connection with a foreign State and the proposed forename accords with the practice of the said State; or
3) if some other valid reason is considered to exist.”
COMPLAINTS
The applicants complained under Articles 8 and 14 of the Convention that the refusal to register the name “Axl” amounted to a violation of their right to respect for their private and family life. Furthermore, they have been the subject of discrimination as other “Axl’s” had been registered in the Population Information System.
THE LAW
The applicants complain that the refusal to register a name chosen for their son violated their rights under Article 8 and further, that they had suffered discrimination contrary to Article 14. Article 8 reads as follows:
“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 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
A. Article 8 of the Convention in isolation
The Government, referring to the case of Stjerna v. Finland (judgment of 25 November 1994, Series A no. 299‑B), did not contest the applicability of Article 8. They found similarities with the case of Guillot v. France (judgment of 24 October 1996, Reports of Judgments and Decisions 1996‑V, § 27) and considered that the present application did not interfere with the applicants’ rights under Article 8 § 1. As noted by the Advisory Committee on Names in its submissions to the Administrative Court, the forename “Axel” could have been registered, and the name “Axl”, chosen by the parents, could still have been used within the setting of the family and in private dealings. In the Government’s view, the inconvenience caused by the one-character difference between the spellings of the official forename registered in the Population Information System and the forename used socially was insignificant.
In any event, the Government argued that the interference was in accordance with the law as it was based on section 32b of the Names Act. It also had a legitimate aim and was necessary within the meaning of Article 8 § 2 of the Convention. In that connection, they submitted that the name practice followed in a State was closely linked to the cultural and linguistic history and identity of that State. This was especially true in a small linguistic area like Finland, where efforts to maintain a distinctive name practice were particularly justifiable. Moreover, the Names Act aimed to protect the child from being given unsuitable names.
The Government underlined that it was possible to deviate from the domestic name practice in certain situations under the Names Act. A child could be given a forename compatible with the name practice of his or her own State of nationality, even if this forename did not fulfil the requirements of section 32b, subsection 2 of the Names Act. In addition to nationality, family relations or another particular circumstance might also constitute a substantive connection to a foreign State. The provision was intended to permit, for instance, the giving of forenames to immigrants who may later return to their State of nationality or wish to continue following the name practice of that State for linguistic or cultural reasons. The present applicants, however, fell outside that category.
The applicants, for their part, submitted that the refusal to accept the name “Axl” interfered with their right to respect for their private and family life and thus fell within the ambit of Article 8 § 1. They argued that the present application differed from the case of Salonen v. Finland (dec.), (no. 27868/95, 2 July 1997), which concerned the refusal to register the name “Ainut Vain Marjaana” (“The One and Only Marjaana”). In that case the Commission found that if the reason for preventing the registration of a forename was to protect a person from inconveniences caused by his name, the contracting States enjoyed a wide margin of appreciation. However, the present application was different as there were currently (in August 2006) six “Axls” registered in the Population Information System.
The applicants further argued that the margin of appreciation afforded to the Government had substantially decreased since the above-mentioned decision in Salonen v. Finland. That application was pending before the then Commission in 1995, the year when Finland joined the European Union. Since then, both Europe and the world as a whole had changed and national borders had lost their traditional meaning. In light of this, the question must be asked: how long can a Contracting State justify its national Names Act and refuse to register a name on the ground that the name was not in compliance with the domestic name practice. They emphasised that the Convention was a living instrument and had to be interpreted in light of present-day conditions.
The applicants shared the Government’s view that a child could not be given any name. The refusal of a name should, however, be based on objective reasons and applied equally to all citizens. If exceptions were made, they should be justifiable and certainly not arbitrary. They considered that the Government had not adduced any argument as to why it had been justified to register the name “Axl” in six other cases but to refuse it in the applicants’ case. Thus, there has been an interference with their Article 8 rights, especially when the said Article was taken in conjunction with Article 14.
As to whether the interference was justified under Article 8 § 2, the applicants agreed with the Government that the interference had a basis in national law and therefore was in accordance with the law.
They left it to the Court to decide whether the interference pursued a legitimate aim. They maintained that the Government had failed to provide reasons why six “Axls” could be found in the Population Information System, although they were not allowed to give their son that name. In this connection, they referred to the decision Mentzen alias Mencena v. Latvia (dec.), (no. 71074/01, ECHR 2004-XII), where the Court found that questions relating to national name practice could be assessed by the Court under Article 8 § 2 if the interference was arbitrary.
Finally, it was difficult to see why the interference could be regarded as necessary in a democratic society. The name “Axl” was not that much different from names such as “Alf”, “Ulf” of “Axel”, which are all accepted in Finland. The Government certainly enjoyed a margin of appreciation. However, given increased international cooperation, the protection of a national name practice per se could not be a valid reason to refuse a name which did not differ greatly from the domestic name practice nor cause inconvenience to the child.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Article 8 in conjunction with Article 14 of the Convention
The Government reiterated that the present application should be distinguished from the situations where, under section 32 (b), subsection 3(2) of the Names Act, a child might be allowed a name contrary to the domestic name practice. As noted above, this was the case, for example, if the members of the family were not Finnish nationals or if the family had relations with or other links to a foreign State. Consequently, the aim of this provision was to protect minorities. In any event, in the Government’s view, the exemption provided for in the domestic legislation had an objective and reasonable justification and the difference in treatment pursued a legitimate aim in the present case.
The Government did not contest that by the time the applicants’ son was born there were three persons with the name “Axl” in the Population Information System. By September 2005 there were five persons registered with that name. One had been born abroad and had a double nationality. The others were born in Finland and were Finnish nationals. However, the Government contested the applicants’ assertion that the Helsinki Population Register Authority would have accepted the name “Axl”. They further argued that the mere fact that a name can be found in the Population Information System could not be taken as proof of its acceptance for the purposes of the Names Act. The population registration authorities enjoyed a discretion in applying the Names Act. They could accept or refuse a name depending on how they applied in practice the principles derived from the Names Act.
Finally, the Government submitted that the name practice was evolving all the time. Thus, a name that had not been accepted might later gain acceptance and become compatible with the domestic name practice within the meaning of the Names Act.
In the applicants’ opinion the refusal to accept the name “Axl Mick” for their son was discriminatory. The name “Axl” would have been accepted under section 32 (b), subsection 3 of the Names Act if they had had a tie to a foreign State and the name had accorded with the name practice followed in that State. Thus, the said provision indisputably placed persons who were Finnish citizens by birth in unequal position vis-à-vis persons who were born in or had other connections to a foreign country. In their opinion, a person’s national origin or family relationship was not a valid reason which, according to the Court’s case-law, could be held to be objective and acceptable, given in particular the evolving interpretation of the Convention.
Further, the Government’s assertion that the Population Registration Authorities enjoyed a discretion in applying the Names Act could not, in their view, qualify as an objective and reasonable justification for differing treatment. They had been in contact with the Helsinki Population Register Authority, which had stated that the name “Axl” would have been registered “without any problem”.
The applicants finally emphasised that the Names Act dated back to 1991. Since then, as noted earlier, Finland has become a member of the European Union. They concluded that in an increasingly international society the growing mobility of people in itself required that national legislation be flexible.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy