EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18131/91
Stjerna
against
Finland
REPORT OF THE COMMISSION
(adopted on 8 July 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1
B. The proceedings
paras. 5 - 9). . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 10 - 14) . . . . . . . . . . . . . . . . . 1
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 46) . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 15 - 22) . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice and
legal co-operation
(paras. 23 - 46) . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 47 - 81) . . . . . . . . . . . . . . . . . . . .10
A. Complaints declared admissible
(para. 47) . . . . . . . . . . . . . . . . . . . .10
B. Points at issue
(para. 48) . . . . . . . . . . . . . . . . . . . .10
C. Article 8 of the Convention
(paras. 49 - 71) . . . . . . . . . . . . . . . . .10
D. Article 14 of the Convention
(paras. 72 - 79) . . . . . . . . . . . . . . . . .13
E. Recapitulation
(paras. 80 - 81) . . . . . . . . . . . . . . . . .14
PARTLY DISSENTING OPINION OF MR. TRECHSEL, MR. ERMACORA,
MRS. THUNE, MR. ROZAKIS AND MR. NOWICKI . . . . . . . . . . . . . .15
PARTLY DISSENTING OPINION OF MR. LOUCAIDES. . . . . . . . . . . . .18
PARTLY DISSENTING OPINION OF MR. PELLONPÄÄ. . . . . . . . . . . . .19
PARTLY DISSENTING OPINION OF MRS. LIDDY . . . . . . . . . . . . . .21
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .22
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . . .23
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen born in 1936 and resident in
Helsinki. He is a customs inspector by profession. He is represented
by Mr. Markku Fredman, a lawyer practising in Helsinki.
3. The application is directed against Finland. The respondent
Government are represented by Ambassador Tom Grönberg, Director General
for Legal Affairs, Ministry for Foreign Affairs, Helsinki.
4. The application relates to the refusal of the applicant's request
for permission to change his surname. The applicant complains under
Articles 8 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 11 March 1991 and registered
on 25 April 1991.
6. On 2 December 1991 the Commission decided to invite the
Government to submit written observations on the admissibility and
merits of the application.
7. The Government's observations were submitted on 28 February 1992
and the applicant's observations in reply on 13 April 1992.
8. On 29 June 1992 the Commission declared the application
admissible.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. Active consultations with the parties took place
between 2 July and 10 August 1992. In the light of the parties'
reaction, the Commission now finds that there is no basis on which such
a settlement can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M. P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M. NOWICKI
I. CABRAL BARRETO
11. The text of this Report was adopted on 8 July 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. In March 1989 the applicant requested the County Administrative
Board (lääninhallitus, länsstyrelsen) of the County of Uusimaa to grant
him permission to have his surname Stjerna (pronounced "Shaerna")
changed to "Tawaststjerna", a name used by his ancestors. The
applicant further referred to practical inconveniences in using his
present name of old Swedish form, as it is less known and, because of
pronunciation difficulties, easily misspelt, as "Stjärna", "Säärna",
"Saarna", "Seerna", "Sierna", "Tierna", "Tsäärna" and "Stjerba".
16. By an advisory opinion of 19 April 1989 to the County
Administrative Board the Advisory Name Board (nimilautakunta, nämnden
för namnärenden) objected to the change, as it had not been shown that
the proposed name had been in established use by his ancestors. The
Board noted that one of the ancestors had been born out of wedlock.
It further had regard to the fact that the name had belonged to very
distant ancestors of the applicant and that the expression "ancestor"
in the Surname Act (sukunimilaki 694/85, släktnamnslagen 694/85) does
not include all direct ancestors of an applicant, without any
limitations. The Board referred to Section 10 para. 2 of the Act.
17. During the subsequent exchange of views between the applicant and
the Name Board the applicant on 14 June 1989 stated that his present
name had given rise to a pejorative nickname, "kirnu" (Eng. churn)
derived from "Tsäärna". He contended that the distant relationship
with his ancestors could not be interpreted to his detriment. He
further contested that his ancestor had been born out of wedlock and
referred to the result of a genealogical investigation submitted to the
County Administrative Board.
18. The Name Board on 25 October 1989 contended that the proposed
name was inappropriate and that the request should be refused. It noted
that the applicant had put forward a weighty reason for his request,
that is the obscure character of his present name. However, although
he was a descendant of an ancestor named Tavaststjerna who had died in
1773, the relationship between the applicant and that ancestor was
remote. Moreover, the proposed name could result in inconveniences
similar to those caused by the applicant's present name.
19. On 21 November 1989 the applicant complained that an expert
opinion submitted to the Name Board by a member of that Board was
partial. He further stated that his present name was causing delays
in his mail because of spelling difficulties. He changed, however, the
proposed name to "Tavaststjerna" in order to comply with the spelling
form recommended by the member of the Name Board.
20. On 26 January 1990 the applicant made further submissions to the
County Administrative Board, arguing that he had complied with all
criteria set out by the Name Board. He further referred to a telephone
conversation with a member of the Name Board according to whom a
further criterion taken into account by the Board was the old-fashioned
character of the proposed name. This criterion, however, had not been
stated in its opinions.
21. On 12 February 1990 the County Administrative Board, in
application of Section 10 para. 2 of the Surname Act, rejected the
applicant's request, finding that it had not been shown that the
proposed name had been in established use by his ancestors, as the
first ancestor to carry his present name had been born out of wedlock
to the last ancestor carrying the proposed new surname. On the other
hand, the Board found that the name had been used by very distant
ancestors, for which reason the proposed change could not be considered
appropriate.
22. On the applicant's appeal the Supreme Administrative Court
(korkein hallinto-oikeus, högsta förvaltningsdomstolen) on
14 November 1990 (by 4 votes to 1) upheld the County Administrative
Board's decision. The Court stated:
"From the documents in the case it is established that [the
applicant's] ancestor, Mr. Fredrik Stjerna, born in ...
1764, was the child of Mr. Magnus Fredrik Tavaststjerna
born out of wedlock. However, merely for this reason the
proposed name cannot be considered to have belonged to [the
applicant's] ancestors in such an established way as
prescribed in Section 10 para. 2 of the Surname Act.
Having regard to this as well as to the reasons stated in
the County Administrative Board's decision .. there is no
reason to change that decision..."
The dissenting member stated, inter alia:
"From the documents in the case it is established that the
proposed name Tavaststjerna has belonged in an established
way to the applicant's ancestors. The fact that ...
Fredrik, ... starting from whom the surname of the
applicant's ancestors ... has been "Stjerna", was born out
of wedlock, has no legal relevance... (As) [the applicant]
has established that [his] present surname is causing [him]
inconvenience I quash the County Administrative Board's
decision and refer the case back for new examination."
B. Relevant domestic law and practice and legal co-operation
a. Finland
aa. Name changes
23. Section 10 of the Name Act (nimilaki, namnlagen; the title of the
Act amended by Act no. 253/91) reads:
(Finnish)
"Sukunimen muuttamisen edellytykset. Sukunimi voidaan muuttaa
uudeksi sukunimeksi, jos hakija selvittää,
1) että hänen nykyisen sukunimensä käytöstä nimen
vierasperäisyyden, sen yleiskielen merkityksen tai nimen
yleisyyden johdosta taikka muusta syystä aiheutuu haittaa;
2) että uudeksi sukunimeksi esitetty nimi on aikaisemmin ollut
hänellä tai vakiintuneesti kuulunut hänen esivanhemmilleen ja
sukunimen muuttamista on pidettävä tarkoituksenmukaisena; tai
3) että uuden sukunimen ottamista on muuttuneiden olosuhteiden
tai muiden erityisten seikkojen johdosta pidettävä perusteltuna."
(Translation)
"Conditions for changing a surname. A surname may be
changed, if the applicant can show
1) that the use of his present surname is causing him
inconvenience because of its foreign origin, its meaning in
common usage, its common appearance or for any other reason;
2) if the proposed surname has previously been used by himself
or, in an established way, by his ancestors and provided the
change may be considered appropriate; or
3) if a change of surname can be considered justified because of
changed circumstances or for other particular reasons."
24. According to Finnish doctrine a refusal under Section 10 para. 2
should state why the requested name is considered inappropriate
(Kangas, Urpo: Ihmisen nimi, p. 100. Helsinki 1991).
25. Section 11, as amended by Act no. 253/91, prescribes:
(Finnish)
"Uuden sukunimen hyväksymisen yleiset esteet. Uudeksi sukunimeksi
ei voida hyväksyä sukunimeä, joka on sopimaton tai jonka käyttö
muutoin voi aiheuttaa ilmeistä haittaa.
Ilman erityistä syytä ei uudeksi sukunimeksi voida hyväksyä
nimeä:
1) joka muodoltaan tai kirjoitustavaltaan on kotimaisen
nimikäytännön vastainen;
2) jota yleisesti käytetään etunimenä; tai
3) joka on muodostettu yhdistämällä kaksi sukunimeä."
(Translation)
"General obstacles to the change of a surname. A surname which
is improper or whose use can otherwise cause clear inconvenience
cannot be accepted as a new surname.
In the absence of a particular reason 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;
2) a name commonly used as a first name; or
3) a name created by combining two surnames."
26. Section 12 para. 1, as amended by Act no. 253/91, provides,
insofar as it is relevant:
(Finnish)
"Suojatut nimet ... Uudeksi sukunimeksi ei voida hyväksyä
sukunimeä, joka on Suomessa merkitty väestörekisteriin, eikä
nimeä, jonka yleisesti tiedetään vakiintuneen määrätyn kotimaisen
tai vierasmaalaisen suvun nimeksi, ellei tähän ole olemassa
erityistä syytä."
(Translation)
"Protected names ... A surname registered in the Finnish
population register or commonly known as being used by a
particular Finnish or foreign family cannot be approved as a new
surname in the absence of a particular reason."
27. Section 13 para. 2 no. 1 provides:
(Finnish)
"[Erityiset syyt uuden sukunimen hyväksymiselle.] Uusi sukunimi,
joka ei vastaa 11 §:n 2 momentissa tai 12 §:ssä asetettuja
vaatimuksia, voidaan hyväksyä,
1) jos hakija osoittaa, että hänen tai hänen esivanhempansa ovat
aikaisemmin laillisesti käyttäneet hakijan uudeksi sukunimeksi
esittämää nimeä [;]"
(Translation)
"[Particular reasons for permitting a new surname.] A new surname
which does not comply with the requirements in Section 11 para. 2
or Section 12 may be permitted,
1) if the applicant can show that the proposed new name has
previously been lawfully used by him or his ancestors [;]"
bb. The population register
28. The Finnish population registration is based on a national
register administered by the Population Register Centre
(väestörekisterikeskus, befolkningsregistercentralen) (Chapter 3,
Section 8 of the 1970 Act on Population Registers, väestökirjalaki
141/69, lag 141/69 om befolkningsböcker).
29. The national population register contains not only the names and
the personal identitity number of an individual, but also a large
amount of other information by virtue of which he can be traced. For
instance, if his name is unknown but his personal identity number
appears, his name and address can be found by virtue of electronic data
processing. If not even his personal identity number is known, it can
be found by processing other information pertaining to the individual.
The register is updated five times a week. Public authorities including
the police have access to the register (see "Le système d'information
de l'état civil finlandais", pp. 32-34 in "Journée internationale de
l'état civil". Commission Internationale de l'Etat Civil, 1992).
30. Population registers on the municipal level are administered by
the local evangelical-lutheran and orthodox parishes or the local
registration office, if the person concerned is not a member of any
parish (Chapter 2, Sections 3, 6 and 26).
31. Everyone who has been included in a population register is given
a personal identity number by the Population Register Centre. The
number consists of the birth date, month and year, an individual number
and a control number (Sections 4 and 5 of the 1970 Decree on Population
Registers (väestökirja-asetus 198/70, förordning 198/70 om
befolkningsböcker)).
32. For someone not registered in a evangelical-lutheran or an
orthodox parish a register card will be created, including, among other
information, his surname, first name and personal identity number
(Section 7 para. 1 of the 1970 Decree).
33. When a decision granting permission for a name change has been
rendered, the County Administrative Board shall immediately inform the
Civil Registration Centre of the new name once the decision has
acquired legal force. If permission is granted on appeal, the Supreme
Administrative Court shall report the new name to the Centre (Section
8 para. 1 of the 1991 Name Decree (nimiasetus 254/91, namnförordning
254/91)).
34. If a surname has been changed, the decision of the authority
having permitted the change shall be noted on the person's register
card (Section 7 para. 4 of the 1970 Decree).
b. Other member States of the Council of Europe
aa. Legislation governing name changes and population registration
in the member States of the International Commission on Civil Status
35. The name laws in the twelve member States of the International
Commission on Civil Status (Commission Internationale de l'Etat Civil),
all of which are also member States of the Council of Europe, show the
following similarities. In Austria, Germany, Luxembourg and Switzerland
the reason invoked for a surname change should be of a weighty
character. Spanish law expressly mentions the possibility to request
permission to change a name which is contrary to the dignity of the
person or to decency. In Greece a name change can be permitted, if
someone's present name is causing him difficulties in his legal or
social relations. In Italy a name change can be permitted, if the
present name is ridiculous. In the Netherlands a name may be changed,
if it is indecent or ridiculous. In Belgium, France, Portugal and
Turkey any reason may be invoked in support of a name change request
(Guide pratique international de l'état civil. Paris 1992).
36. In ten of the States name changes are automatically noted in at
least part of the population records kept by the authorities. In two
States this takes place either at the request of the name holder
(Belgium) or of a representative of the State (France)(ibid.).
bb. Cooperation within the Council of Europe
37. At the 1982 Conference of European Ministers of Justice proposals
were made for the updating of the surname laws of the member States to
the effect that "the new law[s] on surnames must be less rigid in
character and afford the individuals concerned greater freedom of
choice than is the case in many systems [in the member States of the
Council of Europe]". It was acknowledged, however, that "the new law[s]
... must also take account of social and administrative considerations
by setting reasonable limits on the freedom to change names". Among the
reasons supporting greater freedom of choice was the importance of
allowing the individual "to express his identity through the choice of
a surname" (pp. 20-21 in "Acquisition of the surname". Report submitted
by the Netherlands' Delegation. Thirteenth Conference of European
Ministers of Justice. Strasbourg 1982).
38. The Ministers of Justice acknowledged "the value of the surname
at a national and international level as a means of identifying a
person and his family", but also recognised "the personal and social
importance of the surname for each person" (Resolution No. 2 on
acquisition of the surname. Annex III to "Conclusions and Resolutions
of the Conference. Strasbourg 1982).
cc. English and United Kingdom law
39. Under English law a person is entitled to adopt a surname of his
own choosing and to use this name without any restrictions or
formalities, except in connection with the practice of some professions
where the use of a new name may be subject to certain formalities
(Halsbury's Laws of England, 4th ed., vol. 35, paras. 1173-1176).
40. For the purposes of record and to obviate any doubt or confusion
caused by a name change a declaration can be made in the form of a
"deed poll" which may be enrolled with the Central Office of the
Supreme Court (see Eur. Court H.R., Cossey judgment of
27 September 1990, Series A no. 184, p. 9, para. 16). The new name is
valid for purposes of legal identification, may be used in public
documents and is entered on the electoral roll (ibid.).
41. The United Kingdom has no civil status certificates or equivalent
current identity documents (see the above-mentioned Cossey judgment,
loc.cit., para. 17).
42. The absence in English law of formalities governing name changes
has, however, not resulted in a large number of such changes (Killerby,
Margaret: "Précisions sur le droit anglais du nom", pp. 183-184 in "La
nouvelle loi sur le nom". Paris 1988).
dd. Swiss jurisprudence
43. In a case before the Federal Court (Bundesgericht) of Switzerland
a family requested permission to change its surname from
"Kliebenschädel" to "Kliby", an artist name used by one of the family
members (judgment of 22 September 1988, reproduced in Revue de l'état
civil 1989:12, pp. 373-374). The family argued that "Kliebenschädel"
had unpleasant connotations such as the German equivalent of "split
skull". Moreover, the name was distorted, in particular when pronounced
quickly. Reference was made to twelve other surnames which had appeared
on envelopes of letters addressed to the family.
44. The Federal Court recalled that under Swiss law a name change may
be permitted provided there are weighty reasons. It further recalled
case-law and doctrine according to which this condition is met, "if
someone's interest in taking a new name is more important than the
interest of the administration and the public in the static character
of a name acquired and registered as well as in the unambiguous
identification and distinction of individuals". "The name should render
[the individual's] well-being possible and facilitate [it]; ... not
[create] significant disadvantages or serious inconveniences ...".
45. The Federal Court considered that a justified personal interest
in a name change is, for instance, to avoid ridiculous connotations of
a name. A name change could also be considered, if the name is ugly,
indecent or constantly distorted. The fact that the proposed new name
had already been used in the family as an artistic name did not as such
justify a change.
46. The Federal Court observed, however, that the name
"Kliebenschädel" was not only mixed up with other names, but also
distorted. As the name holders' personal feelings had been encroached
upon by virtue of the serious effects of the use of that name, the
proposed name change should be permitted. Moreover, no particular
public interest had been shown against a name change or against the
taking of the name proposed by the family.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
47. The Commission has declared admissible the applicant's complaints
that the refusal to grant him permission to change his surname violates
his right to respect for his private life and discriminates against
him.
B. Points at issue
48. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 8 (Art. 8)
of the Convention; and
- whether there has been a violation of Article 14 of the
Convention taken together with Article 8 (Art. 14+8).
C. Article 8 (Art. 8) of the Convention
49. Article 8 (Art. 8) of the Convention reads, insofar as it is
relevant:
"1. Everyone has the right to respect for his private ...
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 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."
50. The applicant argues that Article 8 (Art. 8) is applicable in the
particular circumstances of his case. He accepts that the Name Act does
not provide any absolute right to a name change, but points out that
his present surname is causing him great inconveniences in his everyday
life such as pejorative nicknames and delays in his mail.
51. The applicant further submits that the refusal to let him take
the name "Tavaststjerna" pursued none of the aims enumerated in
Article 8 para. 2 (Art. 8-2). Nowadays the wide-spread use of personal
identity numbers should decrease the State's interest in restricting
the right to name changes. Criminal records and other means for social
control are already based on a specific number afforded to each person.
Thus, the control function of the name legislation is being invoked in
excess.
52. The applicant finally argues that the refusal was
disproportionate to the alleged aims. His genealogical link to a number
of ancestors carrying the name "Tavaststjerna" was considered
established. Undue regard was had to the fact that the first ancestor
to carry the applicant's present name had been born out of wedlock to
the last ancestor carrying the name "Tavaststjerna". As a result, the
proposed name was considered not to have belonged to the applicant's
ancestors in an established way. Moreover, contrary to the applicant's
present name, the name "Tavaststjerna" is well-known to Finns and would
therefore not create the inconveniences suffered from the name
"Stjerna".
53. The Government primarily argue that Article 8 (Art. 8) is not
applicable, as there has been no interference with the applicant's
right to respect for his private life. Reference is made to the case
of Hagmann-Hüsler v. Switzerland (No. 8042/77, Dec. 15.12.77, D.R. 12
p. 202).
54. The Government further submit that the refusal of the applicant's
request was based on sufficient and precise provisions in the Name Act
and was, thus, lawful. Although the applicant's request was only
examined under Section 10 para. 2 of the Name Act and not under para. 1
of that provision, this is of no relevance to the examination of his
application before the Commission. Whilst the purpose of
Section 10 para. 2 is to ensure that a person can use the name he feels
closest to himself, a further requirement is that the name proposed by
him is deemed appropriate. The Government acknowledge that the
increasing use of personal identity numbers might reduce the need to
restrict the right to a change of name. The refusal was, however, made
in the interests of national security, public safety, for the
prevention of disorder or crime and the protection of the rights and
freedoms of others.
55. The Government finally argue that, particularly in view of the
control function of name legislation, the refusal complained of was
"necessary in a democratic society". Many other Contracting Parties
have enacted similar restrictions on name changes. The applicant's
request was also examined under Section 12 para. 1 of the Name Act. As
the name "Tavaststjerna" had been entered into the Population Register
and was commonly known to have been established as the name of a given
Finnish family, the applicant's request could have been granted only
for a special reason as set out in Section 13 para. 2 of the Name Act.
56. The Commission recalls that the right to respect for private life
as enshrined in Article 8 para. 1 (Art. 8-1) ensures a sphere within
which everyone can freely pursue the development and fulfilment of
one's personality. The right to develop and fulfil one's personality
necessarily comprises the right to an identity and, therefore, to a
name (Burghartz and Schnyder Burghartz v. Switzerland, Comm. Report
21.10.92, para. 47).
57. The Commission further recalls that the notion of "respect"
enshrined in Article 8 (Art. 8) is not clear-cut. This is the case
especially where the positive obligations implicit in that concept are
concerned. Its requirements will vary considerably from case to case
according to the practices followed and the situations obtaining in the
Contracting States. In determining whether or not such an obligation
exists regard must be had to the fair balance that has to be struck
between the general interest and the interests of the individual (Eur.
Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C,
p. 47, para. 44).
58. In the above-cited case of B. v. France the Court found a
violation of Article 8 (Art. 8) in a case concerning the non-
recognition in law of the new sexual identity of a post-operative
transsexual. The Court considered that the refusal to allow the
applicant to change her forename was "also a relevant factor from the
point of view of Article 8 (Art. 8)". The Court further found that the
inconveniences suffered by B. in her everyday life "reach[ed] a
sufficient degree of seriousness to be taken into account for the
purposes of Article 8 (Art. 8)". The Court concluded that B.'s everyday
situation, taken as a whole, was not compatible with the respect for
her private life and that, even having regard to the State's margin of
appreciation, the fair balance which has to be struck between the
general interest and the interests of the individual had not been
attained (ibid., pp. 52-54, paras. 58-63).
59. In the case of Burghartz and Schnyder Burghartz v. Switzerland
the Commission found Article 8 (Art. 8) of the Convention to be
applicable. The applicants complained of the refusal to allow the
second applicant (the husband of the first applicant), who had taken
his wife's surname, to place his own surname in front of that name
(loc.cit., para. 51).
60. The case of Hagmann-Hüsler referred to by the Government
concerned a parliamentary candidate's unsuccessful request to stand for
election under a name known to the public, namely her maiden name. The
Commission was satisfied that the applicant had a "reasonable
possibility of precise identification available to her" since she could
have added her maiden name after her surname as an "alliance name"
(loc. cit., p. 205).
61. In a more recent case, Boij v. Sweden, the applicant complained
of the refusal to allow her to take a surname used by ancestors some
two hundred years ago. The Commission saw no lack of respect, and
therefore no interference with, her rights under Article 8 para. 1
(Art. 8-1) of the Convention, as the applicant was still using her
former husband's surname and could have availed herself of the
possibility to take back her maiden name. Moreover, although wishing
to manifest a closer link to her ancestors she did not refer to any
particular inconvenience caused by her present name (No. 16878/90,
Dec. 29.6.92, to be published in D.R.).
62. The present case resembles the case of Boij in that the
genealogical link between the applicant's present surname and the new
name proposed by him was considered established. It differs, however,
in that the present applicant invokes several inconveniences caused by
the use of his present surname, the existence of which is not
contested.
63. The Commission observes, however, that in many countries
stability in the use of surnames is considered important, and the right
to change such names is therefore restricted in different ways.
Particular considerations apply when there is a question of changing
to a surname which is already carried by other persons or which has
specific historical or cultural connotations.
64. The Commissions accepts that there could be exceptional cases
where the carrying of a particular name creates such suffering or such
practical difficulties that the right under Article 8 (Art. 8) is
affected. There are, however, good reasons for restrictions in this
area, and a right to change one's surname cannot, in principle, be
considered to be included in the right to respect for private life, as
protected by Article 8 (Art. 8) of the Convention.
65. In the present case, the Commission observes that the applicant's
name "Stjerna" is the old spelling of the Swedish word "stjärna",
meaning "star". Those who understand the meaning of the name are likely
to consider it an attractive or even beautiful name, and the name has
in no way any ridiculous or otherwise unpleasant connotations.
66. The problems invoked by the applicant relate to the fact that for
a Finnish-speaking person, not acquainted with the Swedish language,
the name may be difficult to pronounce or easily misspelt, because the
combination of consonants "stj", which is common in Swedish, does not
exist in the Finnish language.
67. The Commission does not consider, however, that such
inconveniences could be sufficient to give a right under Article 8
(Art. 8) of the Convention to change a surname.
68. The Commission further notes that Swedish names are quite common
in Finland and that the Swedish language, although spoken only by a
minority of the population, cannot be considered to be alien to the
Finnish society, since it is the second official language of Finland.
69. The Commission also notes that the name which the applicant
wished to adopt, "Tavaststjerna", is a well-known name in Finland,
carried by a family, certain of whose members have been distinguished
literary and cultural personalities. The fact that the applicant's
ancestors more than 200 years ago had carried the name "Tavaststjerna"
would not seem to be of any particular relevance insofar as Article 8
(Art. 8) of the Convention is concerned.
70. In these circumstances, the Commission finds that the refusal to
let the applicant change his name from "Stjerna" to "Tavaststjerna"
does not constitute a lack of respect for his private life within the
meaning of Article 8 (Art. 8) of the Convention.
Conclusion
71. The Commission concludes, by 12 votes to 9, that there has been
no violation of Article 8 (Art. 8) of the Convention.
D. Article 14 (Art. 14) of the Convention
72. Article 14 (Art. 14) of the Convention reads:
"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."
73. The Commission recalls that Article 8 (Art. 8) and the other
provisions of the Convention defining substantive rights are
supplemented by Article 14 (Art. 14) prohibiting discrimination in the
enjoyment of such rights. A measure which as such could be in
conformity with one of the normative provisions may nevertheless
violate that provision taken in conjunction with Article 14 (Art. 14),
if it is applied in a discriminatory manner. However, there can be no
room for the application of Article 14 (Art. 14), unless the facts at
issue fall within the ambit of one of the other substantive provisions
of the Convention (cf. Eur. Court H.R., Inze judgment of
28 October 1987, Series A no. 126, p. 17, para. 36 with further
reference).
74. The Commission has found above that the applicant's complaint,
that he was refused permission for the proposed name change, falls
within the ambit of Article 8 (Art. 8). Article 14 (Art. 14) of the
Convention is therefore also applicable.
75. For the purposes of Article 14 (Art. 14) of the Convention a
difference in treatment is discriminatory if it "has no objective and
reasonable justification", that is, if it does not pursue a "legitimate
aim", or if there is no "reasonable relationship of proportionality
between the means employed and the aim sought to be realised". The
Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations
justify a different treatment in law. The scope of the margin will
vary according to the circumstances, the subject-matter and its
background (ibid., p. 18, para. 41).
76. The Commission must determine whether the way in which the Name
Act was applied in the applicant's case discloses a discrimination
contrary to Article 14 (Art. 14).
77. The Commission observes that the fact that the applicant's
ancestor, who had carried the name proposed by the applicant, had been
born out of wedlock was not as such decisive for the outcome of the
applicant's request. Regard was further had to the fact that the name
"Tavaststjerna" had been carried by very distant ancestors of the
applicant.
78. In these circumstances the Commission finds no substantiation of
the applicant's allegation that the refusal discriminated against him
by virtue of the fact that a particular ancestor of his had been born
out of wedlock.
Conclusion
79. The Commission concludes, unanimously, that there has been no
violation of Article 14 of the Convention in conjunction with
Article 8 (Art. 14+8).
E. Recapitulation
80. The Commission concludes, by 12 votes to 9, that there has been
no violation of Article 8 (Art. 8) of the Convention (para. 71).
81. The Commission concludes, unanimously, that there has been no
violation of Article 14 of the Convention in conjunction with
Article 8 (Art. 14+8) (para. 79).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
PARTLY DISSENTING OPINION OF MR. TRECHSEL, MR. ERMACORA, MRS. THUNE,
MR. ROZAKIS and MR. NOWICKI
We regret that we cannot agree with the majority of the
Commission that there has been no violation of Article 8 of the
Convention.
We accept, in principle, the State's right to regulate and limit
changes of surnames. A name change should, however, in our view be
permitted, if an individual can show the existence of particular
inconveniences suffered from the use of his or her present name and
provided no weighty reasons militate against the taking of the new name
proposed. Such reasons could, for instance, be that the proposed name
could affect the interests of a family carrying that particular name.
In the present case we agree with the majority of the Commission
that the translation of the applicant's present surname into English
can be considered an attractive one, without ridiculous or unpleasant
connotations. In our view, however, the principal issue to be
considered is not the meaning of the word "stjerna" but that of its
pejorative connotation "kirnu" (the Finnish equivalent to "churn") and
the practical problems caused by the distortion of the name "Stjerna"
(the delays in the applicant's mail). These inconveniences have not
been contested by the Government.
It may well be that not everybody would feel disturbed by the
particular nickname "kirnu" or by delays in his or her mail. This,
however, is not of relevance to the Commission's consideration of the
present case. The essential fact is that the applicant himself resents
those inconveniences.
We observe that the name proposed by the applicant,
"Tavaststjerna", includes his present name "Stjerna". One could
therefore question whether the proposed name would resolve the
inconveniences suffered by him. The applicant has submitted, however,
and it is not disputed by the Government, that "Stjerna" is an uncommon
name, while "Tavaststjerna" is historically well-known in Finland, for
which reason it is easier to use.
The majority of the Commission further attaches importance to the
need to protect the present family carrying the name "Tavaststjerna".
We are unable to agree with this approach. We note that the
domestic courts considered it established that the name "Tavaststjerna"
had also been carried by members of the applicant's family. The
Government have referred to Section 12 para. 1 of the Name Act under
which, in view of the need to protect the present Tavaststjerna family,
the applicant's request could only have been granted for a particular
reason.
We note, however, that in the domestic decisions no reference was
made to Section 12 para. 1, although Section 10 para. 2 requires that
the reasons for which a name change is considered inappropriate should
be stated in the refusal (see para. 24 of the Report). The need to
protect the present Tavaststjerna is therefore merely an assumed ground
justifying the refusal.
It is true that the applicant could request permission to change
his name to another name than that proposed. But someone wishing to
change his name should in principle be able to propose a name
previously been carried by members of his or her family. As
acknowledged by the Government the ratio of Section 10 para. 2 of the
Name Act is to allow a person requesting a name change to propose a
name with which he feels associated. The applicant stated such a
preference by proposing a name carried by ancestors some two hundred
years ago and showed the existence of a genealogical link between him
and those ancestors.
For the above reasons, we conclude that the refusal to let the
applicant change his name from "Stjerna" to "Tavaststjerna" amounted
to a lack of respect for his private life as enshrined in Article 8 of
the Convention.
Examining the justification grounds under Article 8 para. 2 of
the Convention we first consider that the refusal took place "in
accordance with the law" and served a legitimate aim. Although we do
not find this very convincing, we will accept that the interference
pursued the aim of preventing disorder.
An interference with a right under Article 8 para. 1 must,
however, further correspond to a "pressing social need" and, in
particular, be proportionate to the legitimate aim pursued. Although
a margin of appreciation is to be left to the Contracting State the
Convention organs must determine whether the reasons adduced to justify
the interference are "relevant and sufficient" (e.g. Eur. Court H.R.,
Olsson no. 2 judgment of 27 November 1992, para. 87, to be published
in series A no. 250).
In the examination of the necessity we observe that in all member
States of the International Commission on Civil Status, at the same
time members of the Council of Europe, a surname change may be
permitted either for a weighty reason such as, in particular, the
inconvenience caused by the use of the current name. In a large
majority of the States a change is automatically noted in records kept
by the authorities (see paras. 35-36 of the Report). Moreover, a large
majority of the High Contracting Parties use some kind of numbering
system in order to control individuals within their jurisdiction. The
name is therefore no longer the only means of identifying a person.
We further note that the Finnish population register is
meticulously set up and administered both on a national and municipal
level. As soon as a name change has been decided by an authority it is
automatically included in the population register. The register
contains not only the names and the personal identity number of an
individual, but also a large amount of other information by virtue of
which he or she can be traced (see paras. 28-34 of the Report).
Legislation governing names and the application of such
legislation affect, in a far-reaching manner, the private sphere of an
individual. In our view the grounds justifying a refusal of a name
change must be particularly convincing, when the reasons invoked in
support of the request are that the present name is causing the name
holder mental distress and practical difficulties.
In the present case the authorities had regard to the fact that
a particular ancestor had been born out of wedlock. In our view,
however, this finding was of no relevance, as that ancestor had already
been carrying the applicant's present name and not the new one
proposed.
Regard was further had to the remote relationship between the
applicant and his ancestors. The quality of the relationship at issue
would, however, also seem to be of little relevance, this being
primarily a question to be assessed by the applicant himself.
We consider therefore that the reasons adduced in the refusal of
the applicant's request to take the name "Tavaststjerna" were not
"relevant and sufficient". Even having regard to the margin of
appreciation afforded to the State, the interference with the
applicant's private life neither answered to a "pressing social need"
nor was it proportionate to the aims pursued.
We conclude that, in the particular circumstances of the present
case, the refusal to allow the applicant to take the name
"Tavaststjerna" was not "necessary in a democratic society".
Accordingly, there has been a violation of Article 8 of the
Convention.
PARTLY DISSENTING OPINION OF MR. LOUCAIDES
I regret that I cannot share the opinion of the majority that
there has been no violation of Article 8 of the Convention in the
present case.
As recalled by the majority of the Commission (para. 56 of the
Report), the right to develop and fulfil one's personality comprises
the right to an identity and therefore to a name. As further recalled
(para. 58 of the Report), the Court has found a violation of
Article 8 due to the impossibility for a person who had changed her sex
to obtain legal recognition of her new sexual identity. In reaching
this conclusion the Court considered, inter alia, that the refusal to
allow the applicant to change her forename was "also a relevant factor
from the point of view of Article 8".
The choice of a name by an individual is interwoven with his
choice of his personal image and amounts to a manifestation of his
personality. A refusal of a request for a name change could therefore
raise an issue under Article 8 of the Convention.
As acknowledged by the Government, the increasing use of personal
identity numbers might reduce the need to restrict the right to a
change of name. A large majority of the member States of the Council
of Europe use some kind of numbering system in order to control the
individuals within their jurisdiction. Consequently, the name is no
longer a particularly important means of identifying a particular
individual. Besides, it was always permissible to have a name identical
to the name of an undefined number of persons.
The right to the change of a name may be subjected to
restrictions or limitations as prescribed in the proviso of Article 8.
I consider that the refusal to allow the applicant to take the
name "Tavaststjerna" was "in accordance with the law" and served a
legitimate aim. However, in the circumstances of the case, I cannot
find that the refusal corresponded to "a pressing social need".
PARTLY DISSENTING OPINION OF MR. PELLONPÄÄ
I agree with the other dissenting opinions in so far as the
refusal of the request for a name change in the present case raises an
issue under Article 8 of the Convention.
The name Stjerna with its combination of the consonants "stj" in
the beginning of the name has given rise to practical difficulties,
such as delays of mail, which affect the private life of the applicant.
I do not find it necessary to decide whether the refusal of the name
change in these conditions should be regarded as an "interference"
with, or as behaviour showing a "lack of respect" for, the applicant's
rights. In both cases similar considerations apply in the assessment
of whether Article 8 has been violated. As stated by the European Court
of Human Rights in a case concerning adverse effects of airport noise,
"[w]hether the present case be analysed in terms of a positive duty on
the State to take reasonable and appropriate measures to secure the
applicants' rights under paragraph 1 of Article 8 or in terms of an
"interference by a public authority" to be justified in accordance with
paragraph 2, the applicable principles are broadly 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 H.R., Powell and Rayner judgment of
21 February 1990, Series A no. 172, p. 18, para. 41). This applies,
mutatis mutandis, to the present case.
The relevant criteria for the balancing of the different
interests are to be found in para. 2 of Article 8. In other words,
whether analysed in terms of "interference" or "lack of respect", the
refusal of the name change must be "in accordance with the law", serve
one of the legitimate purposes mentioned in paragraph 2, and be
"necessary in a democratic society".
I accept that the refusal took place "in accordance with the
law".
The existence of a legitimate purpose within the meaning of
Article 8, para. 2, must be decided in the light of the domestic
decisions rendered in the case, not by way of speculation as to whether
a legitimate purpose not reflected in these decisions might
nevertheless exist.
In this case the refusal was based on a narrow genealogical
approach, whereby only Section 10, para. 2 of the Name Act was applied.
The focus was on the question whether the proposed new name had
belonged to the applicant's ancestors in an "established way" (in
Finnish "vakiintuneesti") within the meaning of that provision. As
stated by the Government in their observations, "[i]t seems that no
position has been taken by the Finnish authorities on the alleged
inconvenience referred to in section 10, paragraph 1, but that they
only would have applied paragraph 2 of the section, although both
paragraphs serve as independent prerequisites for the change of
surname".
Had the authorities examined the alleged inconveniences, they
would, most likely, have had to decide whether other considerations,
such as the interests of the Tavaststjerna family, would have
outweighed the applicant's interest in the desired change. A refusal
rendered under such conditions could arguably be defended with
reference to the "rights and freedoms of others".
However, the need to protect the Tavaststjerna family is, in
actual fact, in no way reflected in the domestic decisions as a ground
for the refusal. Therefore, the "rights and freedoms" of others cannot
be relied on as a justification before the Commission. Nor am I able
to infer from the relevant decisions any other of the legitimate
purposes mentioned in para. 2 of Article 8 which, in the present case,
could be referred to as a justification for the refusal. The fact that
the legislation in question as such serves various legitimate interests
cannot in these circumstances be regarded as sufficient for the
purposes of Article 8.
My conclusion is that the requirement of a legitimate purpose was
not fulfilled and that Article 8 has therefore been violated. In these
circumstances I do not reach the question whether the refusal could be
regarded as "necessary in a democratic society".
PARTLY DISSENTING OPINION OF MRS. LIDDY
The refusal of a name change in this case raises the question of
whether the applicant's right to respect for his private life has been
observed. I have had the benefit of reading Mr. Pellonpää's dissenting
opinion and agree with him that, whether analysed in terms of
"interference" or "lack of respect", the refusal of the name change
must be lawful, serve a legitimate purpose and be necessary in a
democratic society. I also agree with him that the refusal took place
in accordance with the law and that, for the reasons he gives, its aim
was not to protect the rights and freedoms of others.
However, I can accept that the aim of a machinery set up by
statute for controlling name changes is the prevention of disorder, so
that, broadly speaking, the grant or refusal of permission for a name
change in an individual case can be said to be aimed at the prevention
of disorder.
The question remains whether it was necessary in a democratic
society to refuse a name change or, put otherwise, whether Finland
upset the fair balance between the competing interests of the
individual and those of the community as a whole, which must be struck
under Article 8.
It seems to me clear that the applicant had a strong interest in
changing his name. For some people with unusual names it must be a
burden to be obliged constantly to repeat the pronunciation of the name
and spell it distinctly, and risk being addressed wrongly no matter
have many precautions have been taken. Other people with unusual names
may be quite content with their situation, but the applicant in the
present case clearly was not, and suffered the inconvenience of delays
in his mail.
I do not see how the interests of the community in the prevention
of disorder could have outweighed the applicant's interests. There
existed a machinery for changing names and for noting the name change
on the register card of the individual (paras. 33-34 of the Report).
In these circumstances I conclude that a fair balance was not
struck and that the applicant's right to respect for his private life
was not observed in the present case.
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
11 March 1991 Introduction of the application
25 April 1991 Registration of the application
Examination of admissibility
2 December 1991 Commission's decision to invite the
Government to submit observations on the
admissibility and merits of the
application
28 February 1992 Government's observations
13 April 1992 Applicant's observations in reply
29 June 1992 Commission's decision to declare the
application admissible
Examination of the merits
2 July 1992 Decision on admissibility transmitted to
the parties
5 December 1992 Commission's consideration of the state of
proceedings
3 April 1993 Commission's consideration of the state of
proceedings
2 July 1993 Commission's deliberations on the merits
and final vote
8 July 1993 Adoption of the Report
Full & Egal Universal Law Academy