Lexploria

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

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STJERNA v. FINLAND

STJERNA v. FINLAND

LEXI