Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16213/90

by Susanna BURGHARTZ and Albert SCHNYDER BURGHARTZ

against Switzerland

The European Commission of Human Rights sitting in private on

19 February 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G.H. THUNE

SirBasil HALL

MM.F. MARTINEZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 January 1990

by Susanna BURGHARTZ and Albert SCHNYDER BURGHARTZ against Switzerland

and registered on 26 February 1990 under file No. 16213/90;

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 facts of the case, as submitted by the parties, may be

summarised as follows.

The first applicant, born in 1956, has dual Swiss and German

nationality. The second applicant, born in 1956, is a Swiss citizen.

The applicants, a married couple, are both historians residing in Basel

in Switzerland. Before the Commission the applicants are represented

by Ms. E. Freivogel, a lawyer practising at Binningen in Switzerland.

Particular circumstances of the case

The applicants have resided in Basel since 1975. Before their

marriage in 1984, the first applicant's name was Susanna Maria Simone

Burghartz; the second applicant's name was Albert Johann Schnyder.

In 1984 the applicants married in the Federal Republic of

Germany. In accordance with German law, the wife's name was declared

to be the family name. The second applicant declared in addition that

he would put his own name before the family name. After the marriage,

therefore, the first applicant bore in the Federal Republic of Germany

the name Susanna Burghartz, the second applicant the name Albert

Schnyder Burghartz.

When the Swiss Civil Status Registry (Zivilstandsamt) recorded

as the applicants' family name Schnyder, the applicants requested the

Council of State (Regierungsrat) of the Canton of Basel-Landschaft to

be allowed to adopt Burghartz as the family name and Schnyder Burghartz

as the second applicant's name. This request was refused by the

Council of State on 6 November 1984.

On 5 October 1984 the Swiss Civil Code (Zivilgesetzbuch) was

amended with regard to the effects of marriage, inter alia as regards

the family name of the married couple. The amendment entered into

force on 1 January 1988.

On 26 October 1988 the applicants requested the Department of

Justice (Justizdepartement) of the Canton of Basel-Stadt to be allowed

to adopt as the family name Burghartz and to permit the second

applicant to put his birth name before the family name, i.e. Schnyder

Burghartz.

On 12 December 1987 the Department of Justice refused this

request. It found that the applicants had not mentioned any serious

disadvantages deriving from the family name Schnyder. Moreover, the

Swiss Civil Code did not contain intertemporal provisions with regard

to Section 30 para. 2 of the Code (see below Relevant domestic law).

Thus, the applicants could not on the basis of this provision, after

their marriage, request the adoption of the wife's name as the family

name. On the other hand, according to the text of Section 160 para.

2 of the Civil Code the possibility for the wife to put her name before

the husband's name was clearly limited to the wife, and the husband had

no corresponding right (see Relevant domestic law).

The applicants then filed an appeal (Berufung) with the Federal

Court (Bundesgericht). In their appeal they complained in particular

of a violation of Sections 30 and 160 of the Civil Code as well as

Section 8a of the Final Provisions (Schlusstitel) to the Civil Code.

The applicants also invoked Section 4 para. 2 of the Federal

Constitution.

The Federal Court gave its decision on 8 June 1989; the decision

was served on the applicants on 27 July 1989.

Insofar as the applicants complained that they were not allowed

to adopt the wife's maiden name as the family name, the Court upheld

their appeal. It found on the one hand that Section 30 para. 2 of the

Civil Code was inapplicable as it clearly only referred to fiancés, not

to married persons. On the other hand the Court considered that in the

present case there were important reasons within the meaning of Section

30 para. 1 of the Swiss Civil Code. The Court noted inter alia the

proximity of Basel to the Federal Republic of Germany and the

particular situation of the applicants, namely their age and

professional sphere in the light of which the decision of the

Department of Justice could not be considered satisfactory. The Court

therefore determined that the applicants were permitted to adopt

Burghartz as the family name.

Insofar as the applicants requested, with reference to Section

160 para. 2 of the Civil Code, that the second applicant put his former

name before the family name, i.e. Schnyder Burghartz, the Court

dismissed the appeal. The Court recalled the preparatory materials of

Section 160 para. 2 of the Civil Code. It noted that from the outset

a free choice between the husband's and the wife's name had been ruled

out as it would have run against tradition while still forcing one

spouse to give up his or her name. The decision of the Federal Court

continues:

"The meaning, purpose and also the history of Section 160 para.

2 of the Civil Code all militate against an interpretation

running counter to the text and thus against its implicit

application to the husband who agreed to adopt as the family name

the woman's name. It is understandable that the applicants

invoke the principle of equality and argue in favour of an

interpretation conforming with the Constitution ... In addition,

it can hardly be overlooked that the man, who loses his original

name due to the choice according to Section 30 para. 2 of the

Civil Code or the change according to Section 30 para. 1 of the

Civil Code, will also be interested, for reasons connected with

his right of personality, in having his previous name put first.

This can nevertheless not alter the fact that the original view

expressed in the Council of State, according to which Section 160

para. 2 should be drafted independently of the sex, was not taken

up despite intensive discussion in both Chambers. Thus, seeing

that the legislator, by adopting Section 160 para. 2 in its

present wording, has in the end clearly decided in favour of a

solution specifically making a distinction on the basis of sex,

an interpretation relying primarily on Article 4 para. 2 of the

Federal Constitution is excluded."

"Sowohl Sinn und Zweck als auch die Entstehungsgeschichte des

Art. 160 Abs. 2 ZGB sprechen gegen eine dem Wortlaut

zuwiderlaufende Auslegung und somit gegen dessen sinngemässe

Anwendung auf den Mann, welcher der Wahl des Frauennamens zum

Familiennamen zugestimmt hat. Zwar ist verständlich, dass sich

die Berufungskläger auf den Grundsatz der Rechtsgleichheit

berufen und einer verfassungskonformen Auslegung das Wort reden

... Ueberdies lässt sich kaum übersehen, dass auch der Mann, der

seinen angestammten Namen durch die Wahl gemäss Art. 30 Abs. 2

ZGB oder die Abänderung gemäss Art. 30 Abs. 1 ZGB verliert,

ebenfalls aus Gründen des Persönlichkeitsrechts am Voranstellen

seines bisherigen Namens interessiert ist. Das vermag aber daran

nichts zu ändern, dass die ursprünglich im Ständerat vertretene

Auffassung, wonach Art. 160 Abs. 2 ZGB geschlechtsunabhängig

ausgestaltet werden sollte, trotz eingehender Diskussion in

beiden Räten nicht mehr aufgegriffen worden ist. Hat sich der

Gesetzgeber mit der Aufnahme des Art. 160 Abs. 2 ZGB in seiner

heutigen Formulierung letzlich eindeutig für eine ge-

schlechtsspezifische Lösung entschieden, kommt eine in erster

Linie von Art. 4 Abs. 2 BV ausgehende Auslegung nicht in Frage."

Relevant domestic law

1.Section 4 para. 2 of the Swiss Federal Constitution states:

"Men and women have equal rights. The law ensures their equality

particularly in the family, in education and at work. Men and

women are entitled to equal pay for equal work."

"Mann und Frau sind gleichberechtigt. Das Gesetz sorgt für ihre

Gleichstellung, vor allem in Familie, Ausbildung und Arbeit.

Mann und Frau haben Anspruch auf gleichen Lohn für gleichwertige

Arbeit."

Section 30 paras. 1 and 2 of the Swiss Civil Code states:

"1. The Government of the Canton of residence may permit a

person to change the name, if there are important reasons.

2.The request of the fiancés to have as from their marriage

the wife's name as the family name, must be permitted if there

are reasons commanding respect."

"1. Die Regierung des Wohnsitzkantons kann einer Person die

Änderung des Namens bewilligen, wenn wichtige Gründe vorliegen.

2.Das Gesuch der Brautleute, von der Trauung an den Namen der

Ehefrau als Familiennamen zu führen, ist zu bewilligen, wenn

achtenswerte Gründe vorliegen."

Section 160 paras. 1 and 2 of the Civil Code states:

"1. The husband's name shall be the spouses' family name.

2.However, the bride may declare before the civil registrar

that she wishes to have her previous name put before the family

name."

"1.Der Name des Ehemannes ist der Familienname der Ehegatten.

2.Die Braut kann jedoch gegenüber dem Zivilstandsbeamten

erklären, sie wolle ihren bisherigen Namen dem Familiennamen

voranstellen".

Section 8a of the Final Provisions to the Civil Code states:

"A woman who married under the previous law may, within a period

of one year after the new law enters into force, declare before

the civil registrar that she will put the name which she had

before marriage before the family name".

"Die Frau, die sich unter dem bisherigen Recht verheiratet hat,

kann binnen Jahresfrist seit Inkrafttreten des neuen Rechts

gegenüber dem Zivilstandsbeamten erklären, sie stelle den Namen,

den sie vor der Heirat trug, dem Familiennamen voran".

2.Section 43 para. 1 of the Federal Judiciary Act (Organisations-

gesetz) provides the appeal (Berufung) as a remedy to complain to the

Federal Court inter alia of a violation of Federal law, such as in the

present case the Civil Code. However, this provision expressly

reserves the public law appeal (staatsrechtliche Beschwerde) as a

remedy to complain about alleged violations of constitutional rights.

In practice, the alleged violation of Convention rights must also be

raised in a public law appeal.

However, whatever remedy is employed, the Federal Court's power

of examination is governed by Section 113 para. 3 of the Swiss Federal

Constitution (Bundesverfassung) which provides as follows:

"In all these cases the statutes and decrees of general

applicability enacted by the Federal Assembly and the

international treaties which it has approved are authoritative

for the Federal Court."

"In allen diesen Fällen sind jedoch die von der Bundesversammlung

erlassenen Gesetze und allgemein verbindlichen Beschlüsse, sowie

die von ihr genehmigten Staatsverträge für das Bundesgericht

massgebend."

Section 113 para. 3 thus prevents the Federal Court, and all

Swiss authorities, when considering the legality of the application of

a Federal Statute in an individual case, from examining whether the

Statute conforms with the Constitution or the Convention.

COMPLAINTS

The applicants complain that, whereas a woman who after marriage

has the husband's name as the family name is permitted to put her

previous name before the family name, the husband is denied the same

right if, as in the applicants' case, the wife's previous name is the

family name. The applicants rely on Article 8 of the Convention, and

Article 14 of the Convention taken together with Article 8.

The applicants point out that the second applicant's original

name no longer appears in various registers and documents. His

university also refuses to issue the certificate of his doctoral thesis

with his previous name put before his family name. Thus, the

connection of identity to his previous publications is no longer

maintained.

The applicants submit that the right to respect for private life

within the meaning of Article 8 of the Convention comprises the use of

a person's name. In the case of the second applicant the function of

identity which his name provided has been lost. This is a serious

interference which is unjustified and disproportionate. Under Article

14 of the Convention the applicants submit that there is no objective

justification for this discrimination according to sex.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 January 1990 and registered

on 26 February 1990.

On 8 April 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

20 June 1991. The applicants' observations in reply are dated

30 September 1991.

THE LAW

1.The applicants complain that the second applicant, who has agreed

to using the wife's maiden name as the family name, is denied the right

to put his previous name before the family name. The applicants submit

that a woman in the same situation is permitted this right. Thus, if

a woman after marriage has the husband's name as the family name, she

may put her previous name before the family name. The applicants

submit that this is an unjustified interference with their right to

respect for private life within the meaning of Article 8 (Art. 8) of

the Convention. They also rely on Article 14 of the Convention taken

together with Article 8 (Art. 14+8) of the Convention.

Article 8 (Art. 8) of the Convention states:

"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) of the Convention states:

"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."

2. The Government submit that Article 5 of Protocol No. 7 (P7-5) is

a lex specialis to Article 8 (Art. 8) of the Convention. When

ratifying that Protocol Switzerland extended the right of individual

petition under Article 25 (Art. 25) of the Convention to the Protocol.

However, it also made a reservation to Article 5 of Protocol No. 7

(P7-5), in the light of which, it is submitted, the application is

incompatible ratione materiae with the Convention within the meaning

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

The applicants contend that the Swiss reservation to Article 5

of Protocol No. 7 (P7-5) aims solely at ensuring the unity of the

family name in respect of children. This is not the issue arising in

the present case and the reservation is therefore irrelevant.

Article 5 of Protocol No. 7 (P7-5) states:

"Spouses shall enjoy equality of rights and

responsibilities of a private law character between them, and in

their relations with their children, as to marriage, during

marriage and in the event of its dissolution. This Article shall

not prevent States from taking such measures as are necessary in

the interests of the children."

The reservation made by Switzerland when ratifying Protocol No. 7

states, insofar as relevant:

"Following the entry into force of the revised provisions

of the Swiss Civil Code of 5 October 1984 the provisions of

Article 5 of the Additional Protocol No. 7 (P7-5) shall apply

subject to ... the provisions of Federal law concerning the

family name (Article 160 CC and 8a final section CC) ..."

In dealing with the Government's objection the Commission must

examine the applicants' complaints in the light of the rights which

they have invoked. Their first complaint is that the second applicant

cannot put his own name before the family name and that this violates

their right to respect for private life within the meaning of Article

8 (Art. 8) of the Convention. However, the right to respect for

private life is not enshrined in Article 5 of Protocol No. 7 (P7-5)

which grants to spouses the equality of rights and responsibilities of

a private law character between them. In this respect therefore the

right guaranteed by Article 8 (Art. 8) of the Convention is distinct

from the right enshrined under Article 5 of Protocol No. 7 (P7-5).

The applicants complain, secondly, that in respect of this

interference with their right to respect for private life there was a

discrimination contrary to Article 14 (Art. 14) of the Convention. As

regards the interpretation of this provision the Commission recalls the

Convention organs' case-law according to which "it is as though

(Article 14 (Art. 14) of the Convention) formed an integral part of

each of the Articles (of the Convention) laying down rights and

freedoms" (Eur.Court H.R., Belgian Linguistic Case, Series A no. 5, p.

34, para. 9). Thus, insofar as the right enshrined in Article 8

(Art. 8) of the Convention is distinct from Article 5 of Protocol No.

7 (P7-5), it also remains distinct when taken together with Article 14

(Art. 14) of the Convention.

The reservation made by Switzerland to Article 5 of Protocol

No. 7 (P7-5) does not therefore concern the Commission's examination

of the present application under Articles 8 and 14 (Art. 8, 14) of the

Convention. It follows that the latter cannot be declared incompatible

ratione materiae with the Convention within the meaning of Article 27

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

3.The Government further submit that the applicants have not

complied with the requirement as to the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention. It is

recalled that the applicants only filed an appeal with the Federal

Court. However, according to Section 43 of the Federal Judiciary Act,

an appeal serves to complain about a violation of Federal law; in order

to complain about a violation of constitutional rights, and the

Convention, a public law appeal must be employed. Indeed, the Federal

Court did not in its decision of 8 June 1989 deal with Articles 8 and

14 (Art. 8, 14) of the Convention.

The applicants point out that the Federal Court dealt in

substance with their complaints under Articles 8 and 14 (Art. 8, 14)

of the Convention.

The Commission notes the applicants' complaints according to

which in their case the application of the Swiss Civil Code

unjustifiably interfered with their right to respect for private life

within the meaning of Article 8 (Art. 8) of the Convention, and also

constituted discrimination contrary to Article 14 (Art. 14) of the

Convention. The Commission considers that according to Section 113

para. 3 of the Federal Constitution all Swiss authorities, including

the Federal Court, are bound by a Federal Statute, such as the Civil

Code, in that they are prevented from examining, in the application of

that Statute, whether it conforms with the Federal Constitution or the

Convention. This is confirmed in the present case by the fact that the

Federal Court, in its decision of 8 June 1989, declined to examine

whether the application of Section 160 para. 2 of the Civil Code

complied with the constitutional right to equality of sexes under

Article 4 para. 2 of the Federal Constitution.

Thus, the applicants did not have an effective remedy at their

disposal to raise before the Swiss authorities the complaints they are

now raising before the Commission. It follows that the application

cannot be rejected for non-exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.

4.The Commission further considers that the second applicant

continues to remain in the same position in that he cannot put his own

name before the family name. Thus, the situation of which the

applicants complain is a continuing one. The application cannot

therefore be rejected for non-compliance with the time-limit of six

months according to Article 26 (Art. 26) of the Convention.

5.The Government submit that the first applicant cannot claim to

be a victim within the meaning of Article 25 (Art. 25) of the

Convention, since the application only concerns the second applicant's

name. In fact, the first applicant is able to have her own name as the

family name.

The applicants reply that they both want the second applicant to

continue to have his name before the family name. The first applicant

in fact feels responsible for the fact that, because her name has

become the family name, the second applicant may be discriminated

against and lose the right to use his name.

The Commission considers that the application has been brought

by a married couple and concerns the names of both applicants, namely

the question whether the husband must use as the only name the family

name, which is the wife's name, or whether he may put his own name

before the family name. The use of these names thus affects both

applicants, as confirmed in the decision of the Federal Court of 8

June 1989 which mentions both applicants as parties to the proceedings

before that Court. Both applicants can therefore claim to be victims

within the meaning of Article 25 (Art. 25) of the Convention.

5. The Government further question the applicability of Article 8

(Art. 8) of the Convention to the present case. Reference is made in

particular to the case of Hagmann-Hüsler v. Switzerland (No. 8042/77,

Dec. 15.12.77, D.R. 12 p. 202). With regard to further issues of the

well-foundedness of the case, the Government reserve their right to

file further observations.

The applicants submit that Article 8 (Art. 8) of the Convention

is applicable to the present case. The fact that the second applicant

has agreed to having the first applicant's name as the family name does

not mean that he has renounced all rights. In fact, he only agreed to

accept that family name on condition that he could put his own name

first.

The Commission, having regard to the parties' submissions under

Articles 8 and 14 (Art. 8, 14) of the Convention, considers that these

complaints raise complex issues of fact and law which require an

examination of the merits. The application cannot, therefore, be

declared 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 ADMISSIBLE,

without prejuding the merits of the case.

Secretary to the CommissionPresident of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BURGHARTZ AND SCHNYDER BURGHARTZ v. SWITZERLAND

BURGHARTZ AND SCHNYDER BURGHARTZ v. SWITZERLAND

LEXI