Published on 19 August 2022
FOURTH SECTION
Application no. 21669/21
Özlem SAHINER
against Austria
lodged on 19 April 2021
communicated on 31 August 2022
SUBJECT MATTER OF THE CASE
The application concerns the refusal to grant the applicant’s request to change her forename from “Özlem” to “Lemilia”. The applicant, who was born in Austria in 1996, was given the Turkish name “Özlem” on insistence by her father, while her mother would have wanted to call her “Lemilia”. The applicant claims to have never met her father except for one difficult experience with him in her childhood. Since her birth, her mother has always called her “Lemilia”. The applicant is also known as “Lemilia” to her friends.
On 27 May 2019 the Innsbruck District Administrative Authority (Bezirkskhauptmannschaft) rejected the applicant’s request on the grounds that the forename “Lemilia” could not be found in the Austrian registrars’ databases. Further, according to the linguistics institute of the University of Innsbruck, the name “Lemilia” did not exist in Italian or Spanish. The authority concluded that “Lemilia” was not a common (gebräuchlich) forename and therefore rejected the applicant’s request with reference to Section 3 § 1 (7) of the Name Change Act (Namensänderungsgesetz).
The Tirol Administrative Court (Landesverwaltungsgericht) upheld the rejection on 4 December 2019, adding that the legislator had not defined in more detail what “common” (gebräuchlich) means in this context; even if the statistical frequency of the use of a forename did not play a role in the assessment of its customary use (Gebräuchlichkeit), it could not be assumed that it was a common forename on the basis of only one single proof by means of a Brazilian driving licence. Furthermore, the fact that a common forename – namely “Emilia” – is preceded by only one letter did not make “Lemilia” a common name.
The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant’s complaint on 8 June 2020, all the while holding that it was compatible with Article 8 of the Convention if the legislator required, for the customary use (Gebräuchlichkeit) of a forename, that the relevant use of that forename could be proven (and thus, especially against the background of the identity-forming significance of the name, did not allow the use of every linguistic enunciation (Enuntiation) suitable for individual identification, which was neither offensive nor ridiculous, as a forename).
On 30 September 2020 the Supreme Administrative Court (Verwaltungsgerichtshof) dismissed the applicant’s appeal upholding the reasoning of the previous domestic courts. It added that the creation of a forename was not allowed because a forename needed to have a real reference point in the social development of names and could not be fictious.
Relying on Articles 8 and 14 of the Convention, the applicant complains about an interference with her right to respect for her private and family life. She does not identify with her official forename “Özlem”, given by her father of Turkish origin with whom she had never had any contact and from whom she wanted to distance herself. She has always been called “Lemilia” by her mother, friends and colleagues. It is also a name very close to an existing one (“Emilia”) and does not create any difficulty to determine her gender. Furthermore, the applicant alleges to have been discriminated against by the Austrian authorities when compared to persons born abroad with the forename “Lemilia”, as they would undoubtedly be allowed to keep that name also in Austria (when obtaining Austrian nationality).
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention (see Johansson v. Finland, no. 10163/02, § 38, 6 September 2007)?
2. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 8 on the ground of the refusal to grant her request to change her forename? In particular, has the applicant been subjected to a difference in treatment in comparison with persons born abroad with the forename “Lemilia”? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?