AS TO THE ADMISSIBILITY OF
Application No. 26272/95
by Felicja SIJKA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 July 1994 by
Felicja SIJKA against Poland and registered on 24 January 1995 under
file No. 26272/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1914, is a pensioner
residing in Szczecinek.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
On 8 May 1993 the applicant requested the Szczecinek District
Office (Urz*d Rejonowy) to permit her to change her surname to "Krüger-
Cylwich". She submitted that she wished to give up her Polish
citizenship and acquire a German one. She contended that she had been
continuously persecuted and harassed by the authorities since the
Second World War because of her political convictions and allegiances.
She submitted in particular that in the light of her German nationality
she was entitled to use a German name and that a refusal to do so would
amount to a violation of her national identity. She submitted that the
name "Krüger" was a name of her maternal family who had been loyal
Polish citizens and had fought during the Second World War for the
independence of Poland. The name "Cylwich" was her late husband's name
and she had been known under that name in Szczecinek from 1946. She
had changed that name to "Sijka" after her marriage. She further
argued that a refusal would be in breach of the European Convention of
Human Rights.
The following documents were enclosed with her request: the
applicant's mother's birth certificate giving her name as "Emilie
Krüger", the applicant's mother's marriage certificate and a copy of
the applicant's identity card issued in 1966 for "Felicja Sijka" and
in which the birth of her daughter G. Cylwich in 1952 had been
registered.
On 11 June 1993 the Director of the Szczecinek District Office
(Kierownik Urz*du Rejonowego) refused to comply with the applicant's
request. In doing so he had regard to the principle of stability of
names and surnames set forth in the Change of Names and Surnames Act.
He further considered that this Act contained a list of criteria to be
complied with in order for a surname to be changed. The applicant's
request did not fall into the ambit of any of those criteria. Her name
"Sijka" which, as it transpired from the applicant's marriage
certificate, she had taken in 1966, was neither undignified nor had a
non-Polish character. It had not been established that she had ever
used the name "Cylwich" as she had not shown that she had married E.
Cylwich. She had not had anything in common ("nie posiada ona nic
wspólnego") with the name "Krüger" as it had only been her mother's
maiden name. Thus, she had not shown that she complied with another
requirement under the Act, i.e. that she had used those names for a
long time. The entry into force of the Polish-German Treaty was of no
relevance to the applicant's case as it only guaranteed that the
persons belonging to a German minority were entitled to use their,
previously polonised, surnames in their German form, whereas the
applicant had not shown that she had ever used the name "Krüger". The
authority went on to state that the applicant's request seemed to be
made under the influence of her son, who had previously unsuccessfully
requested to have his name changed to "Krüger".
The applicant lodged an appeal, arguing, inter alia, that the
Polish-German Treaty on Cooperation of 1991 created a priority of
international law over domestic law and in its Article 3 guaranteed a
right to use names and surnames of the minority members in the national
form. She concluded that this provision superseded the provisions of
the Change of Names and Surnames Act. She further submitted that she
had used the name "Cylwich" from 1946. She relied in this respect on
her son's birth certificate of 1947 in which her name "Felicja Cylwich"
had been entered.
On 3 August 1993 the Koszalin Governor (Wojewoda) upheld the
attacked decision, considering that the arguments relied on by the
applicant in her appeal did not suffice to set the decision aside. In
the applicant's case the legal requirements of a change of name or
surname provided for in Article 2 of the Change of Names and Surnames
Act were not complied with. Consequently, the decision was in
accordance with the law.
The applicant lodged an appeal against this decision. She
submitted that the authorities lacked objectivity and that the decision
was to her detriment. She further submitted that this decision was not
in conformity with the Polish-German Treaty on Cooperation of 1991.
She argued that the decision was in breach of the Change of Names and
Surnames Act, and in particular in breach of its Article 3 para. 2.
On 12 January 1994 the Supreme Administrative Court (Naczelny S*d
Administracyjny) dismissed the applicant's appeal. The Court
considered that the Change of Names and Surnames Act set forth a
principle of stability of surnames and allowed for a change only for
reasons set out therein. These reasons provided for in Article 2 were
as follows: the surname was ridiculous or had an undignified or a non-
Polish character or form of a name. The surname could further be
changed if the applicant wished to take a name which he or she had de
facto used for a long time. In the applicant's case her name "Sijka"
did not satisfy the first set of those criteria. The Court established
that the applicant had concluded a religious marriage with her first
husband and after his death had changed her name from "Cylwich" to
"Gurowska". On her marriage in 1966 she changed her name to "Sijka".
Thus the change from "Cylwich" to "Gurowska" had been effected on the
applicant's own will and it transpired therefrom that she had not used
the former name for a long time. As regards the name "Krüger", the
applicant had not contended that she had ever used it. The mere fact
that it was her maternal family's name did not suffice to comply with
her request. As to the applicant's reference to Article 3 para. 2 of
the Act, it was incorrect as it concerned only a protection afforded
under the Act to historical names. Likewise, the reference in the
applicant's appeal to the Polish-German Treaty did not have a bearing
on the circumstances of the case as it only guaranteed that the persons
belonging to a German minority in Poland were entitled to use their
surnames in their German form, but did not apply to the persons wishing
to change their surnames altogether as these issues were subject to
regulation contained in the Change of Names and Surnames Act.
On 13 June 1996 the Szczecinek District Court (S*d Rejonowy)
ordered the applicant's eviction from her apartment as she had not been
paying rent from February 1995.
Relevant domestic law
The provisions governing the change of names and surnames are set
out in the Change of Names and Surnames Act. Article 1 of this Act
states that a name or surname of a Polish citizen can be changed to
another on his request in the circumstances specified in the Act.
Under Article 2 such a request shall be allowed if there are important
reasons therefor, these reasons being in particular that the surname
to be changed is ridiculous or has an undignified character or has a
non-Polish character, or form of a name, or if the applicant wishes to
change his or her name to one which he or she had de facto used for a
long time.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
she did not have a fair hearing as the authorities in deciding her case
lacked impartiality and took a wrong decision, disregarding all her
arguments. In particular, they failed to take into consideration that
one of the names was her mother's maiden name. They further refused
to take any evidence which would show that she had used the other name
"Cylwich" and had been known under that name.
The applicant further complains that she and her family are being
persecuted and harassed for political reasons. She finally complains
about the eviction judgment.
THE LAW
The applicant complains that she did not have a fair hearing as
the authorities in deciding her case lacked impartiality and took a
wrong decision in that she was refused permission to change her
surname. The applicant invokes Article 6 (Art. 6) of the Convention.
The Commission recalls that the Convention does not contain any
explicit reference to names. Nonetheless, since it constitutes a means
of personal identification and a link to a family, an individual's name
does concern his or her private and family life (Burghartz v.
Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 28,
para. 24). The subject matter of the case thus falls within the ambit
of Article 8 (Art. 8) of the Convention. The Commission has accordingly
examined this complaint under this Article.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission recalls that while a refusal to change one's name
cannot necessarily be considered an interference in the exercise of the
right to respect for private life, there may in addition be positive
obligations inherent in an effective respect for private life. The
boundaries between the State's positive and negative obligations under
Article 8 (Art. 8) do not lend themselves to precise definition. The
applicable principles are nonetheless similar. In both contexts regard
must be had to the fair balance that has to be struck between the
competing interests of the individual and of the community as a whole
(Eur. Court HR, Keegan v. Ireland judgment of 26 May 1994, Series A
no. 290. p. 19, para. 49). There is little common ground between the
domestic systems as to the conditions on which a change of name may be
legally effected. Consequently, the States Parties to the Convention
enjoy a wide margin of appreciation in this domain (see Eur. Court HR,
Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A,
p. 20, para. 55; Stjerna v. Finland judgment of 25 November 1994,
Series A no. 299-B, p. 61, para. 39). The Commission's task is not to
substitute itself for the competent Polish authorities in determining
the most appropriate policy for regulating changes of surnames, but
rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of appreciation.
In the present case it is to be noted that in the applicant's
submissions there is no reference to the fact that she has suffered
any inconvenience because of her name. She only wishes to get rid of
it as she considers that she is being persecuted by the authorities.
As to the applicant's attachment to the proposed name "Krüger",
the Commission considers that it can be argued that the applicant could
have legitimately wished to manifest thereby a link to her family as
this had been her mother's maiden name. However, the Commission
observes that the only reason for which the applicant wished to use the
name "Cylwich" was that she contended that she had been known under
this name in her town from the time of her marriage. It is true that
the applicant submits two declarations of her neighbours who state that
they knew her under the name "Cylwich" as her name acquired as a result
of the 1966 marriage was not accepted by the applicant's environment.
However, it does not transpire from the applicant's submissions that
she had submitted these documents to the authorities deciding her case
as there is no reference thereto in the documents relating to the
proceedings concerned. The Commission does not find it established
that the applicant had used the name "Cylwich". It is not in dispute
that she had never used the name "Krüger-Cylwich".
The Commission further considers that the decisions concerned do
not seem to be arbitrary. The fact that the authorities relied on the
principle of stability as set out in the Change of Names and Surnames
Act as regards change of surnames does not confer such character on
them as they carefully weighed the applicant's arguments adduced in
support of her request in the light of applicable law.
In these circumstances, the Commission finds that the refusal to
let the applicant change her name from "Sijka" to "Krüger-Cylwich" does
not constitute a lack of respect for her private life within the
meaning of Article 8 (Art. 8) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Insofar as the applicant complains that she did not have a fair
hearing in her case, the Commission finds no indication that contrary
to the requirements of Article 6 para. 1 (Art. 6-1) of the Convention
the applicant did not have an opprtunity to put forward her arguments
or that the Court arbitrarily assessed evidence or that the proceedings
were otherwise unfair. As regards the alleged lack of impartiality of
the authorities concerned, the applicant does not rely on any arguments
other than the outcome of the proceedings. It follows that this part
of the application is also manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
Insofar as the applicant complains about being allegedly
persecuted by the authorities, the Commission observes that she has not
adduced any evidence in this respect. It follows that this complaint
is also manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
As regards finally the applicant's complaint concerning the
eviction judgment, the Commission is not required to decide whether or
not it discloses any appearance of a violation of the Convention as
Article 26 (Art. 26) of the Convention provides that the Commission
"may only deal with a matter after all domestic remedies have been
exhausted". In the present case, the applicant failed to lodge an
appeal against the impugned judgment with a higher court.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy