AS TO THE ADMISSIBILITY OF
Application No. 28319/95
by Georg ROGL
against Germany
The European Commission of Human Rights sitting in private on
20 May 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 May 1995 by
Georg ROGL against Germany and registered on 25 August 1995 under file
No. 28319/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant, born in 1950, is a German national and resident
at Irchenrieth. In the proceedings before the Commission he is
represented by Mr. G. Rixe, a lawyer practising in Bielefeld.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant married Ms. B. in September 1984, his surname
becoming their common family name. A daughter, Nicole, was born to
them in April 1985 and also acquired the applicant's surname. The
spouses separated some weeks after Nicole's birth. The divorce of this
marriage was pronounced in 1987, and the right to custody over Nicole
was transferred to her mother, while the applicant was granted a right
of access.
In 1989 Nicole's mother married Mr. M., and the couple took "M."
as family name. In 1991 a son was born to them. Nicole was living
with her mother, her mother's husband and her step-brother.
On 16 September 1991 Nicole's mother applied to the Cham
Administrative Authority (Landratsamt) that her daughter's surname be
changed to "M."
On 9 March 1992 the Cham Administrative Authority decided that
Nicole's surname be changed to "M.".
In its decision, the Authority noted that Nicole's parents had
separated shortly after her birth and that there had been problems
regarding the exercise of the applicant's right of access. Since the
beginning of 1991 the applicant had refrained from exercising his right
of access in the interest of Nicole. However, he wished to be regularly
informed about her well-being. Furthermore, Nicole knew Mr. M. since
1989 and accepted him as father. When applying for a change of
Nicole's surname, her mother intended further to integrate her in the
new family, as it was also Nicole's wish to take the surname "M.".
The Authority found that the conditions under the relevant
provisions of the Change of Surnames Act (Namensänderungsgesetz) were
met. In particular, Nicole's mother, having the right to custody, was
entitled to lodge the request on Nicole's behalf. The persons affected
by the decision (Beteiligte) had been heard.
The Authority noted that the applicant had not agreed to the
change of Nicole's surname. He had made his decision dependent upon
a conversation with Nicole; such a conversation had however not taken
place. The Cham Youth Office (Kreisjugendamt) had submitted an opinion
on 26 November 1991 according to which, having regard to its
investigations and to the documents relating to the decision on the
applicant's right of access, Nicole would suffer from keeping her
surname. Thus, if the requested change were to be refused, there was
a serious risk that Nicole would develop attitudes of aggression and
hostility towards the applicant. The Authority further considered that
the applicant, when requested to state his objections in the light of
the above opinion, questioned the findings of this opinion, but did not
submit any reasons to show that the requested change should be refused
in the interest of Nicole's well-being.
The Authority observed that, in accordance with S. 3 of the
Change of Surnames Act, a surname may only be changed on the condition
that there is an important reason (wichtiger Grund) justifying the
requested change. There was such an important reason where the
legitimate interest of the person requesting the change outweighed the
legitimate interests of the other persons affected by the change - in
the present case Nicole's mother, the applicant and Mr. M. - as well
as the public-law aspects of regulating the use of names.
The Authority considered in particular that, according to the
findings of the Youth Office, the relationship between the applicant
and Nicole was at that time seriously disturbed; while the applicant
regularly asked about Nicole's well-being, Nicole refused to have any
contacts with him. Nicole had developed a good relationship with
Mr. M. whom she regarded as father. She was growing up with her
mother, Mr. M. and her step-brother, fully identified herself with this
family and had expressed her wish to have the same surname as the other
family members. In this family Nicole received her education and
parental care, and, according to the Youth Office, the change of her
surname was necessary in order to ensure her integration in this
family. The Authority found that, balancing Nicole's interests in
changing her surname and the applicant's interests in her keeping his
surname, as well as the general principles governing the use of names,
there was an important reason justifying the change of her surname to
"M.".
On 23 July 1992 the Regional Government of Oberpfalz dismissed
the applicant's administrative appeal (Widerspruch). In these and the
following proceedings the applicant was represented by counsel.
On 7 December 1992 the Regensburg Administrative Court
(Verwaltungsgericht) dismissed the applicant's action to challenge the
decision of 9 March 1992, as confirmed on 23 July 1992. The
Administrative Court found that there was an important reason
justifying the change of Nicole's surname.
The Administrative Court, referring also to the administrative
rules on the change of surnames (Verwaltungsvorschrift zum Gesetz über
die Änderung von Namen), regarded as decisive whether or not, following
the natural parents' divorce and the marriage of the parent exercising
the right of custody, the change of the child's surname was necessary
in the interest of the child's well-being. When parents divorced,
their children had, to some extent, to adapt to this situation and, in
case of a new marriage, also to the possible difference of surnames.
The change of surname was not supposed to repress the children's memory
of their natural parent. A stable relationship with the parent not
exercising the right of custody was as important for the child's well-
being as the child's integration within the new family. However,
Nicole had only been some weeks old when her parents separated. She
had never experienced the applicant as a father of the family. It was,
therefore, particularly important to integrate Nicole in the family of
her mother, her mother's husband and her step-brother where she
experienced family life for the first time. Any matters which could
disturb this aim had to be excluded. The difference of surnames had
to be regarded as such a disturbing element in Nicole's case. In this
respect, the Court found that it was irrelevant whether the question
of a change of her surname had arisen as a result of the influence of
other persons. While there were reasons to assume that Nicole's mother
attempted to obstruct the relationship between Nicole and the
applicant, in any event she had not taken any positive action to
support such a father-child-relationship. The applicant had no longer
been able to exercise his right of access. Nicole was thus under the
sole influence of her mother. It could however be expected that, if
the applicant did not exercise his right of access and Nicole's surname
was changed, the problems between the applicant and his divorced wife
could be overcome. Nicole would have a better chance to establish, as
an adolescent, contacts with the applicant. To this extent, the change
of Nicole's surname would even serve the applicant's interest.
According to the Court, the main consideration was, however, the fact
that Nicole was growing up and being educated together with her step-
brother. Bearing the same surname was of importance for the solidarity
within the family, in particular between the children. Even though
children within a family addressed each other with their forenames,
Nicole would be faced with the difference of surnames in her contacts
with persons outside the family and in particular at school. In such
circumstances there was in general an important reason justifying the
change of the surname. In Nicole's case, there were no exceptional
circumstances arguing against the change of her surname.
The applicant lodged an appeal (Berufung) with the Bavarian
Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof).
A hearing took place before the Court of Appeal on 3 November 1993.
On 30 November 1993 the Bavarian Administrative Court of Appeal
dismissed the applicant's appeal.
The Court of Appeal confirmed the lower instances' general
considerations regarding the change of a child's surname following the
parents' divorce and the further marriage of the parent exercising the
right of custody. It found in particular that the applicant, who had
refrained from exercising his right of access in order to avoid any
further conflicts, was attached to his daughter Nicole and his interest
in keeping, by means of the same surname, a relation with his daughter
was, therefore, not negligible. However, there were particularly
important interests justifying the change of Nicole's surname, namely
her psychological situation, especially following the birth of her
step-brother. Having regard to the opinion of the Cham Youth Office
of 26 November 1991 as well as an earlier psychological expert opinion
of 8 December 1988 which had been prepared in the context of court
proceedings regarding the applicant's right of access to Nicole, the
Court of Appeal considered that Nicole's well-being would be at risk
if her surname was not changed. In this respect, the Court noted that,
according to the opinion of December 1988, Nicole had important
relations to her mother and other persons in her mother's surroundings,
which were on the whole positive - with the exception of the influence
exercised with regard to her relation to the applicant, and the
applicant only played a subsidiary role in her life. According to the
opinion of November 1991, Nicole had already fully integrated into the
new family and had a very good relation to Mr. M. who had taken the
position as her father, while the relation between the applicant and
Nicole was seriously disturbed. Moreover, the applicant had never had
the position of a family father regarding Nicole.
The Court of Appeal further considered that it had not been
necessary to take supplementary psychological expert evidence, as there
was nothing to show that the relevant circumstances had changed since
November 1991 when the expert opinion of the Youth Office had been
prepared. Moreover, taking into account that Nicole had been heard by
both the experts in 1988 and 1991, there was no necessity to hear her
personally in court.
The Court of Appeal refused the applicant leave to apply to the
Federal Administrative Court (Bundesverwaltungsgericht) for review on
points of law. The decision was served upon the parties in December
1993.
The applicant lodged an appeal (Nichtzulassungsbeschwerde) to the
Federal Administrative Court.
On 27 June 1994 the Federal Administrative Court dismissed the
applicant's appeal. The applicant's submission that the request for
a change of Nicole's surname of September 1991 had not been served upon
him related to the administrative proceedings and did not amount to a
procedural mistake in the administrative court proceedings where he had
full opportunity to present all arguments. As regards his complaint
that the Administrative Court of Appeal had not ordered the taking of
further psychological expert evidence, it found that the Court of
Appeal had duly assessed the relevant circumstances on the basis of two
previous opinions. In any event, the applicant had not requested the
taking of further evidence. Finally, the applicant's case did not
involve a matter of principle.
On 9 December 1994 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The Federal Constitutional Court
considered that the complaint did not involve a matter of principle,
as the applicant's submissions did not disclose any reason to doubt the
constitutionality of the legal provisions governing the change of
surnames. Moreover, there was no indication that the applicant, in the
course of the administrative court proceedings, had not been able
effectively to argue his case. Finally, the findings of the
administrative courts that in the instant case the child's well-being
justified the change of her surname did not show any lack of respect
for the rights of the parent not exercising the right of custody. The
decision was mailed on 16 December 1994.
B. Relevant domestic law
The change of surnames is regulated in the Change of Surnames Act
(Namensänderungsgesetz). According to S. 3 para. 1, a surname may only
be changed if there is an important reason to justify such a change.
The relevant circumstances are to be established ex officio, and all
persons directly affected by the envisaged change (unmittelbar
Beteiligte) as well as the local police office and other persons
possibly affected by the envisaged change of the surname are to be
heard (S. 3 para. 2).
COMPLAINTS
1. The applicant complains about the decisions changing his
daughter's surname. He lodges these complaints both in his own name
and on behalf of his daughter.
2. The applicant alleges that the change of his daughter's surname
violates his and his daughter's right to respect for their family life
within the meaning of Article 8 of the Convention. He also invokes
Article 14, taken in conjunction with Article 8. He considers in
particular that S. 3 of the Change of Surnames Act is not sufficiently
precise as a legal basis for the interference with their right under
Article 8. Furthermore, the reasons advanced by the German courts to
justify the change of his daughter's surname were not sufficient, and
his interests as the natural father were not duly taken into account.
According to the applicant, such a change of surname should only be
possible with the consent of the other parent. In any event, his
daughter should at least bear her previous and the new surname, joined
with a hyphen (Doppelname). As regards the procedural requirements
implicit in Article 8, the applicant further complains that the
administrative courts failed to hear his daughter in person as well as
her mother. Moreover, he had not been in a position effectively to
argue his case, as the request of September 1991 had not been served
upon him.
3. The applicant complains under Article 6 of the Convention that
the administrative courts failed to order a further psychological
expert opinion on the question whether or not his daughter would suffer
from keeping her previous surname. He further challenges the
assessment of the relevant circumstances by the German courts.
Moreover, the courts failed to hear his daughter personally. The
applicant also complains that the Bavarian Administrative Court of
Appeal failed to pronounce its decision publicly.
THE LAW
1. The application relates to the change of the surname of the
applicant's daughter Nicole. The applicant raises complaints, in his
own name and on his daughter's behalf, under Articles 6, 8 and 14
(Art. 6, 8, 14) of the Convention.
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission is only competent to examine an application lodged by a
person claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention.
The Commission notes that the applicant does not have the right
to custody over his daughter. This right was awarded to her mother
following the divorce of the parents' marriage. His daughter Nicole
is living with her mother, her mother's second husband and her step-
brother and has no contacts with the applicant. The applicant,
therefore, is not empowered to act on his daughter's behalf on the
basis of any authority over the child. Moreover, the applicant has
failed to demonstrate that he is otherwise entitled to represent his
daughter with respect to this application.
Consequently, the Commission is of the opinion that the first
applicant is not entitled under Article 25 (Art. 25) of the Convention
to bring any complaints on behalf of his daughter Nicole (cf. No.
8045/77, Dec. 4.5.79, D.R. 16 p. 105). It follows that the application
is incompatible ratione personae with the provisions of the Convention,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,
insofar as the applicant proposes to submit complaints on behalf of his
daughter.
2. The applicant alleges that the change of his daughter's surname
violates his right to respect for his family life within the meaning
of Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8), so far as relevant, provides as follows:
"1. Everyone has the right to respect for his private and
family life, ...
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 ... for the
protection of the rights and freedoms of others."
a) Applicability of Article 8 (Art. 8)
The Commission recalls that cohabitation is not a condition sine
qua non of family life between parents and their minor children. A
child born out of a marriage-based relationship or any other de facto
"family" ties is ipso jure part of that "family" unit; from the moment
of the child's birth and by the very fact of it, there exists between
him/her and his/her parents a bond amounting to "family life", even if
the parents are not then living together (cf. Eur. Court H.R., Berrehab
judgment of 21 June 1988, Series A no. 138, p. 14, para. 21; Keegan
judgment of 26 May 1994, Series A no. 290, pp. 17-18, para. 44;
Hokkanen judgment of 23 September 1994, Series A no. 299-A, pp. 19-20,
para. 54).
In the present case, the applicant and Ms. B. married in
September 1984 and their daughter Nicole was born in April 1985. The
spouses separated shortly afterwards, and divorce was pronounced in
1987. The right to custody over Nicole was granted to her mother. The
applicant was entitled to have access to Nicole; however, following
problems in the exercise of his right of access, the applicant, in the
interests of Nicole, refrained from further exercising this right.
However, he remained interested in Nicole's further development and
well-being.
In these circumstances, the Commission considers that from the
moment of the child's birth there existed a bond between her and the
applicant which amounted to family life and which did not break down
following separation and divorce.
b) Compliance with Article 8 (Art. 8)
The Commission, bears in mind that, in the traditional German
system of married couples having a joint family name, the surname of
children born out of such marriage reflects the link to this family.
In this context, the Commission had regard to the case-law of the
Convention organs according to which, since an individual's name
constitutes a means of personal identification and a link to a family,
it does concern his or her private and family life (cf. Eur. Court
H.R., Burghartz judgment of 22 February 1994, Series A no. 280-B,
p. 28, para. 24; Stjerna judgment of 25 November 1994, Series A no.
299-B, p. 60, para. 37).
A parent who, following divorce, does not exercise the right of
custody, may legitimately regard the fact that the child bears this
joint family name as the outer sign of the continuing bond between
them. It is true that, in the particular circumstances of the present
case, the impugned decision did not directly affect any "mutual
enjoyment by parent and child of each other's company" or parent and
child "maintaining regular contacts with each other" (cf. Eur. Court
H.R., Berrehab judgment, loc. cit., p. 14, para. 23; Eriksson judgment
of 22 June 1989, Series A no. 156, p. 24, para. 58). However, the
applicant had already faced problems in exercising his right of access
to his daughter, and had eventually refrained from visiting her. The
change of his daughter's surname may be considered as further weakening
the family bond between the applicant and his daughter.
The Commission therefore considers that the decision of the
German authorities to change the surname of the applicant's daughter
Nicole amounted to an interference with the applicant's right to
respect for his family life, as guaranteed under Article 8 para. 1
(Art. 8-1) of the Convention.
Such interference is in breach of Article 8 (Art. 8), unless it
is justified under paragraph 2 of Article 8 (Art. 8-2) as being "in
accordance with the law" and "necessary in a democratic society" for
one of the legitimate aims set out in this provision.
The Commission notes that the change of Nicole's surname was
based on the relevant provisions of the Change of Surnames Act, as
interpreted in the case-law of the German courts. While the relevant
provisions inter alia used general terms, their bearing was clarified
by the German courts. The applicant's submissions in this respect do
not show any lack of legal certainty (cf. Eur. Court H.R., Barthold
judgment of 25 March 1985, Series A no. 90, pp. 22-23, para. 48). The
interference was therefore "in accordance with the law".
Moreover, the change of her surname envisaged Nicole's well-being
and thus pursued a legitimate aim within the meaning of Article 8
para. 2 (Art. 8-2).
It remains to be examined whether the interference was "necessary
in a democratic society" to achieve the said aim. According to the
established case-law, the task of the Convention organs is to review
under the Convention the decisions taken by the national authorities
in the exercise of their power of appreciation. In so doing, the
Commission must determine whether the reasons purporting to justify the
impugned measure with regard to the applicant's enjoyment of his right
to respect for family life are relevant and sufficient under Article
8 (Art. 8) (Eur. Court H.R., Hokkanen judgment, loc. cit., para. 55).
According to the German administrative authorities and courts,
Nicole's interests in fully integrating into the family consisting of
her mother, her mother's new husband and her step-brother, outweighed
the applicant's interest in his daughter keeping her previous surname
which reflected her parental link with him. The Commission notes that
the authorities had regard to expert evidence on these issues, and the
applicant was heard on the matter and had a full court procedure to
challenge the envisaged change of his daughter's surname. The courts
had due regard to the arguments advanced by the applicant who was
attached to his daughter and had already refrained from exercising his
right of access in order to avoid, in the interests of the child,
further conflicts with his divorced wife. However, the courts also
took into account that Nicole had never experienced any family life in
co-habitation with the applicant, that her relationship to him was
seriously disturbed and that she was attached to Mr. M. Considering
Nicole's psychological situation, especially following the birth of her
step-brother, the German authorities concluded that there were
particularly important interests justifying the change of her surname.
The Commission finds that these reasons were not only relevant
but also sufficient for the purposes of paragraph 2 of Article 8
(Art. 8-2). The competent national authorities, which are in principle
better placed than an international body to evaluate all material
before them, did not overstep their margin of appreciation in arriving
at the decision to change Nicole's surname. This measure cannot be
regarded as disproportionate to the legitimate aim of protecting her
interests.
Moreover, the Commission finds that the applicant, assisted by
counsel, was involved in the decision-making process, seen as a whole,
to a degree sufficient to provide him with the requisite protection of
his interests. The procedural requirements implicit in Article 8
(Art. 8) were therefore complied with (see Eur. Court H.R., W. v.
United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para.
64; Olsson judgment of 24 March 1988, Series A no. 130, p. 33, para.
71).
It follows that the interference with the applicant's right to
respect for his family life was justified under Article 8 para. 2
(Art. 8-2) of the Convention.
Accordingly, this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also invoked Article 14 of the Convention, taken
in conjunction with Article 8 (Art. 14+8), in respect of the change of
his daughter's surname.
Article 14 (Art. 14) of the Convention reads as follows:
"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."
The Commission finds that the applicant failed to substantiate
that the German decisions to change his daughter's surname
discriminated against him, contrary to Article 14 (Art. 14) of the
Convention on any ground specified in this provision.
It follows that this aspect of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant has further complained under Article 6
(Art. 6) of the Convention about the alleged unfairness of the
proceedings regarding the change of his daughter's surname.
Article 6 (Art. 6) of the Convention, so far as relevant,
provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
The Commission finds that the applicant, assisted by counsel,
could duly present his arguments against the envisaged change of his
daughter's surname, and was able to submit any material which he saw
fit. As regards the applicant's complaint that no further expert
evidence was taken, the Commission refers to the findings of the
Administrative Court of Appeal, in particular as to the applicant's
failure to lodge a request for the taking of such evidence.
Viewing the domestic judicial proceedings as a whole, the
Commission finds no reason to conclude that they were not fair.
It follows that the applicant's complaint about the alleged
unfairness of the proceedings is also manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2).
5. With regard to the applicant's submission that the Bavarian
Administrative Court of Appeal failed to pronounce its decision
publicly, the Commission is not required to decide whether or not the
facts submitted by the applicant disclose any appearance of a violation
of Article 6 para. 1 (Art. 6-1) of the Convention as the applicant
failed to raise this issue in his constitutional complaint with the
Federal Constitutional Court. The applicant has not, therefore,
exhausted the remedies available under German law in accordance with
Article 26 (Art. 26) of the Convention. It follows that this part of
the application must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy