Choice of family name and transmission of parents’ surnames to their children
II. RELEVANT DOMESTIC LAW 11. Article 4 para. 2 of the Swiss Federal Constitution provides: "Men and women shall have equal rights. Equality shall be provided for by law, in particular in relation to the family, education and work ..." 12. The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows: Article 30 "(1) The government of the canton of residence may, if there is good cause, authorise a person to change his or her name. (2) Engaged couples shall be authorised, if they so request and if they prove a legitimate interest, to bear the wife ’ s surname as the family name once the marriage has been solemnised. ..." Article 160 "(1) Married couples shall take the husband ’ s surname as their family name. (2) A bride may, however, make a declaration to the registrar that she wishes to keep the surname she has borne to date, followed by the family name. ..." Article 270 "(1) The children of married couples shall bear their family name. ..." Article 8a of the final section "Within one year of the entry into force of the new Act, a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name." 13. By a custom recognised in case-law, married couples may also put the wife ’ s surname after the husband ’ s surname, joining the two with a hyphen. This double-barrelled name (Allianzname), however, is not regarded as the legal family name (Federal Court, judgment of 29 May 1984, Judgments of the Swiss Federal Court, vol. 110 II 99). PROCEEDINGS BEFORE THE COMMISSION 14. Mr and Mrs Burghartz applied to the Commission on 26 January 1990, relying on Articles 8 and 14 (art. 8, art. 14) of the Convention. 15. The Commission declared the application (no. 16213/90) admissible on 19 February 1992. In its report of 21 October 1992 (made under Article 31) (art. 31), it expressed the opinion by eighteen votes to one that there had been a breach of Article 14 taken together with Article 8 (art. 14+8), and by thirteen votes to six that there was no need to examine the case under Article 8 (art. 8) taken alone. The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [*]. AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. Whether or not the first applicant is a victim 16. As before the Commission, the Government contested in the first place that Mrs Burghartz was a victim within the meaning of Article 25 (art. 25) of the Convention. No one but Mr Burghartz had been aggrieved by the refusal of his request, the only one in issue in the case as his wife had obtained satisfaction from the Federal Court, which had allowed her to keep her maiden name (see paragraph 9 above). 17. The applicants pointed to Mrs Burghartz ’ s personal interest in the success of her husband ’ s action. Since, together with him, she had chosen "Burghartz" as their joint family name, she considered herself directly responsible for her husband ’ s loss of his surname "Schnyder", and their married life might suffer from this. The Commission too thought that the question concerned both spouses. 18. The Court points out that the case originated in a joint application by Mr and Mrs Burghartz to change their joint family name and the husband ’ s surname simultaneously. Having regard to the concept of family which prevails in the Convention system (see, among other authorities and mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 14-15, para. 31, and the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A, p. 28, para. 76), it considers that Mrs Burghartz may claim to be a victim of the impugned decisions, at least indirectly. The objection must therefore be dismissed. B. Exhaustion of domestic remedies 19. The Government, who had already raised the issue before the Commission, submitted that the applicants had not exhausted domestic remedies as they had neither relied on Articles 8 and 14 (art. 8, art. 14) of the Convention in their appeal (Berufung - see paragraph 9 above) nor also lodged a public-law appeal. 20. The Court observes that the Federal Court is required by Article 113 para. 3 of the Swiss Constitution to apply the laws passed by the Federal Assembly. It is expressly forbidden to suspend the effects of any such laws which might prove to be incompatible with the Constitution. This prohibition seems to have been extended by current case-law to cases in which there is a conflict between such a law and a treaty. That being so, the applicants cannot be blamed for having founded their appeal solely on domestic law - Articles 30 and 160 of the Civil Code, 8a of the final section of that code and 4 para. 2 of the Constitution - seeing that their arguments were identical in substance with those they submitted to the Commission. As to a public-law appeal, its subsidiary nature prevents it from being considered in this instance an adequate remedy which Article 26 (art. 26) of the Convention would also have required the applicants to exhaust. Accordingly, this objection likewise must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8) 21. The applicants relied on Article 8 (art. 8), taken alone and together with Article 14 (art. 14+8). Article 8 (art. 8) provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Article 14 (art. 14) provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Given the nature of the complaints, the Court, like the Commission, deems it appropriate to examine the case directly under Article 14 taken together with Article 8 (art. 14+8). A. Applicability 22. The Government argued that these two provisions were not applicable. Since the entry into force of Protocol No. 7 (P7) on 1 November 1988, the equality of spouses in the choice of surname had been governed exclusively by Article 5 of that Protocol (P7-5), covering equality of rights and responsibilities of a private-law character between spouses, as a lex specialis. When ratifying that Protocol (P7), Switzerland had made a reservation providing, inter alia, that "[f]ollowing the entry into force of the revised provisions of the Swiss Civil Code of 5 October 1984, the provisions of Article 5 of Protocol No. 7 (P7-5) shall apply subject to ... the provisions of Federal Law concerning the family name (Articles 160 CC and 8a final section CC) ...". Examining the case under Articles 14 and 8 taken (art. 14+8) together would thus be tantamount to ignoring a reservation that satisfied the requirements of Article 64 (art. 64) of the Convention. 23. The Court points out that under Article 7 of Protocol No. 7 (P7-7), Article 5 (P7-5) is to be regarded as an addition to the Convention, including Articles 8 and 60 (art. 8, art. 60). Consequently, it cannot replace Article 8 (art. 8) or reduce its scope (see, mutatis mutandis, the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, pp. 12-13, para. 26). It must nevertheless be determined whether Article 8 (art. 8) applies in the circumstances of the case. 24. Unlike some other international instruments, such as the International Covenant on Civil and Political Rights (Article 24 para. 2), the Convention on the Rights of the Child of 20 November 1989 (Articles 7 and 8) or the American Convention on Human Rights (Article 18), Article 8 (art. 8) of the Convention does not contain any explicit provisions on names. As a means of personal identification and of linking to a family, a person ’ s name none the less concerns his or her private and family life. The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings, in professional or business contexts as in others (see, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, para. 29). In the instant case, the applicant ’ s retention of the surname by which, according to him, he has become known in academic circles may significantly affect his career. Article 8 (art. 8) therefore applies. B. Compliance 25. Mr and Mrs Burghartz complained that the authorities had withheld from Mr Burghartz the right to put his own surname before their family name although Swiss law afforded that possibility to married women who had chosen their husbands ’ surname as their family name. They said that this resulted in discrimination on the ground of sex, contrary to Articles 14 and 8 (art. 14+8) taken together. The Commission shared this view in substance. 26. The Government recognised that what was at issue was a difference of treatment on the ground of sex but argued that it was prompted by objective and reasonable considerations which prevented it from being in any way discriminatory. By providing that, as a general rule, families should take the husband ’ s surname (Article 160 para. 1 of the Civil Code), the Swiss legislature had deliberately opted for a traditional arrangement whereby family unity was reflected in a joint name. It was only in order to mitigate the rigour of the principle that it had also provided for a married woman ’ s right to put her own surname in front of her husband ’ s (Article 160 para. 2 of the Civil Code). On the other hand, the reverse was not justified to the advantage of a married man who, like Mr Burghartz, deliberately and in full knowledge of the consequences, invoked Article 30 para. 1 of the Civil Code to change his surname to that of his wife. It was all the more unjustified as there was nothing to prevent a husband, even in those circumstances, from using his surname as part of a double-barrelled name or in any other way informally. 27. The Court reiterates that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention (see, as the most recent authority, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67). 28. In support of the system complained of, the Government relied, firstly, on the Swiss legislature ’ s concern that family unity should be reflected in a single joint surname. The Court is not persuaded by this argument, since family unity would be no less reflected if the husband added his own surname to his wife ’ s, adopted as the joint family name, than it is by the converse arrangement allowed by the Civil Code. In the second place, it cannot be said that a genuine tradition is at issue here. Married women have enjoyed the right from which the applicant seeks to benefit only since 1984. In any event, the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination. Nor is there any distinction to be derived from the spouses ’ choice of one of their surnames as the family name in preference to the other. Contrary to what the Government contended, it cannot be said to represent greater deliberateness on the part of the husband than on the part of the wife. It is therefore unjustified to provide for different consequences in each case. As to the other types of surname, such as a double-barrelled name or any other informal manner of use, the Federal Court itself distinguished them from the legal family name, which is the only one that may appear in a person ’ s official papers. They therefore cannot be regarded as equivalent to it. 29. In sum, the difference of treatment complained of lacks an objective and reasonable justification and accordingly contravenes Article 14 taken together with Article 8 (art. 14+8). 30. Having regard to this conclusion, the Court, like the Commission, deems it unnecessary to determine whether there has also been a breach of Article 8 (art. 8) taken alone. III. APPLICATION OF ARTICLE 50 (art. 50) 31. Under Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 32. The applicants claimed only the costs of legal representation before the national authorities and the Strasbourg institutions in the sum of 31,000 Swiss francs (CHF). The Government found this amount exorbitant and suggested reducing it to CHF 10,000. The Delegate of the Commission also regarded it as inflated. 33. The Court has considered the matter in the light of observations by those appearing before it and of the criteria laid down in its case-law. Making its assessment on an equitable basis, it awards the applicants CHF 20,000 for costs and expenses.
The Court held that the difference of treatment complained of lacked an objective and reasonable justification and accordingly contravened Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention. In particular, it was not persuaded by the Swiss Government argument which, in support of the system complained of, relied on the Swiss legislature’s concern that family unity should be reflected in a single joint surname. Indeed, family unity would be no less reflected if the husband added his own surname to his wife’s, adopted as the joint family name, than it is by the converse arrangement allowed by the Civil Code. In the second place, it could not be said that a genuine tradition was at issue here: married women had enjoyed the right from which the applicant sought to benefit only since 1984. In any event, the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination. Nor was there any distinction to be derived from the spouses’ choice of one of their surnames as the family name in preference to the other. Contrary to what the Government contended, it could not be said to represent greater deliberateness on the part of the husband than on the part of the wife. It was therefore unjustified to provide for different consequences in each case. Lastly, as to the other types of surname, such as a double-barrelled name or any other informal manner of use, the Federal Court itself had distinguished them from the legal family name, which was the only one that may appear in a person’s official papers. They therefore could not be regarded as equivalent to it.