Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18806/91

by K.B.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 September 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 May 1991 by

K.B. against the Netherlands and registered on 16 September 1991 under

file No. 18806/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1964 and currently

residing at Rotterdam, the Netherlands. Before the Commission he is

represented by Mrs. E.K.E. van Herk, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 16 September 1988 the applicant requested the Minister of

Justice to be allowed to add his mother's maiden name to his family

name by placing it after his father's name. The reason for this request

was his mother's serious illness and the applicant's wish to express

the special bond between him and his mother, who had stimulated him in

many respects. The applicant's mother died on 7 March 1989.

On 15 March 1989 the Deputy Minister rejected the request. The

Deputy Minister noted that, in respect of requests to change family

names, certain directives had to be followed.

The Deputy Minister considered that the applicant's request did

not fall into one of the categories contained in the applicable

directives and did not find that the applicant's personal interest in

having his name changed was of such a nature that his request should

nevertheless be granted.

On 7 April 1989 the applicant filed an appeal under the

Administrative Decisions Appeals Act (Wet Administratieve Rechtspraak

Overheidsbeschikkingen) against the decision of 15 March 1989 with the

Judicial Division of the Council of State (Afdeling Rechtspraak van de

Raad van State).

The Judicial Division rejected the applicant's appeal on 5

December 1990. The Judicial Division noted that the parties did not

dispute the fact that the applicant's request fell outside the

possibilities contained in the applicable directives, but that the

parties' dispute concerned the question whether or not the present case

constituted a special situation in which the Deputy Minister should

nevertheless have granted the applicant's request.

The Judicial Division, having regard to the necessity to prevent

arbitrariness, to maintain the required stability in the rules

governing family names and to prevent double family names, approved the

Deputy Minister's reticent approach in regard to requests to change

names falling outside the scope of the directives. The Judicial

Division rejected the applicant's argument under Articles 8 and 14 of

the Convention, considering that Article 8 does not contain rules

governing family names. Finally, noting that it is open to the

applicant to carry his mother's name in society, the Judicial Division

held that no circumstances had become apparent on the basis of which

the Deputy Minister should have deviated from his policy in this field.

RELEVANT DOMESTIC LAW

Section 7 para. 1 of the Civil Code (Burgerlijk Wetboek) Book 1,

insofar as relevant, reads:

"1. De geslachtsnaam van een persoon kan op zijn verzoek

(...) door de Koning worden gewijzigd.

(...)

5. Bij algemene maatregel van bestuur worden regelen

gesteld betreffende de wijze van indiening en behandeling

van verzoeken als in het eerste (...) lid bedoeld (...)."

"1. The family name of a person can, at his request, be

altered by the King.

(...)

5. Rules on the form of introduction and examination of

requests within the meaning of the first paragraph shall be

set by Order in Council."

By Order in Council of 9 December 1969 on the rules concerning

requests to alter or to establish family names (Regelen betreffende

verzoeken tot naamswijziging en tot naamsvaststelling) the Minister of

Justice is entrusted with the preparatory examination of requests to

change a family name. This Order in Council also authorises the

Minister of Justice to reject such a request when he considers it

cannot be granted.

By Ministerial Order of 3 December 1976 the Deputy Minister of

Justice issued directives for changing family names (Richtlijnen voor

geslachtsnaamswijziging 1976). These directives were lastly amended by

Ministerial Order of 24 April 1980.

According to these directives a request to add a family name to

an existing family name can only be granted where:

a. an applicant demonstrates that the name to be added forms

a part of the family name carried by his ancestors at the

time of the introduction of the Register of births, deaths

and marriages (1810 - 1838) and which name has since then

not fallen into disuse; or,

b. the name to be added concerns the mother's maiden name and

this name is extinct or threatened with extinction. In

these cases the name to be added will be placed before the

person's own family name.

COMPLAINTS

The applicant complains that the refusal of the Dutch authorities

to grant his request for permission to add his mother's maiden name to

his family name violated his right to respect for his private and

family life within the meaning of Article 8 of the Convention. The

applicant further complains under Article 8 in conjunction with Article

14 of the Convention that the application of the Dutch rules on family

names constitutes a discriminatory difference in treatment between men

and women, since, apart from exceptions on a very restricted basis,

individuals are not free to choose to bear their mother's maiden name

as their family name or to add their mother's maiden name to their own

family name.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention that the refusal of the Dutch authorities to grant his

request for permission to add his mother's maiden name to his family

name violated his right to respect for his private and family life. He

further complains under Article 8 in conjunction with Article 14

(Art. 8+14) of the Convention that the application of the Dutch rules

on family names discriminates against women, since, as a rule,

individuals are not free to choose their mother's maiden name as their

family name or to add their mother's maiden name to their own family

name.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads

as follows:

"1. Everyone has the right to respect for his private and

family 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 (...) for the prevention of disorder (...)."

Article 14 (Art. 14) of the Convention reads as follows:

"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."

The Commission recalls that the right to respect for private life

as enshrined by Article 8 para. 1 (Art. 8-1) of the Convention ensures

a sphere within which everyone can freely pursue the development and

fulfilment of the personality. The right to develop and fulfil one's

personality necessarily comprises the right to identity and, therefore,

to a name (S. Burghartz and A. Schnyder Burghartz v. Switzerland, Comm.

Report 21.10.92, para. 47).

The Commission, therefore, considers that Article 8 (Art. 8) of

the Convention applies to the present case.

The Commission also 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 in the

Contracting States. In determining whether 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 (cf. Eur.

Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C,

p. 47, para. 44).

The Commission notes that the applicant's request to add his

mother's maiden name after his family name was refused, as his request

did not meet the conditions laid down in the applicable directives.

The Commission further notes that the Netherlands policy

concerning changes in family names is based on the necessity to prevent

arbitrariness, to maintain the required stability in the rules

governing family names and to prevent double family names.

The Commission accepts that there may be exceptional cases where

the carrying of a particular name creates such suffering or practical

difficulties that the right under Article 8 (Art. 8) of the Convention

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).

Having regard to the fact that the applicant does not allege that

his present family name is causing him any inconveniences (cf. on this

issue No. 16878/90, Dec. 29.6.92, to be published in D.R., and No.

18131/91, Dec. 29.6.92, unpublished) and that he is at liberty to carry

his mother's maiden name in society, the Commission is of the opinion

that the application of the rules established in the directives on

changing family names in the applicant's case does not amount to a lack

of respect for his private life within the meaning of Article 8

(Art. 8) of the Convention.

Insofar as the applicant relies on Article 14 (Art. 14) of the

Convention, an examination of his complaint does not reveal any

appearance of discrimination against him contrary to this Article.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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K.B. v. THE NETHERLANDS

K.B. v. THE NETHERLANDS

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