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CASE OF BURGHARTZ AGAINST SWITZERLAND

Doc ref: 16213/90 • ECHR ID: 001-55593

Document date: September 21, 1994

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CASE OF BURGHARTZ AGAINST SWITZERLAND

Doc ref: 16213/90 • ECHR ID: 001-55593

Document date: September 21, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Burghartz case delivered on 22 February 1994 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against

Switzerland lodged with the European Commission of Human Rights on

26 January 1990 under Article 25 (art. 25) of the Convention by a

married couple, Mr Albert Burghartz, a Swiss and German national,

and Ms Susanna Burghartz, a Swiss national, and that the Commission

declared admissible the complaint that the first applicant was

denied the right to put his family name in front of his wife's,

which he had taken as his family name after the marriage, whereas

a woman in the same situation who had taken the husband's name as

her family name could put her previous name before the family name;

Recalling that the case was brought before the Court by the

Commission on 11 December 1992 and by the Government of the Swiss

Confederation on 8 January 1993;

Whereas in its judgment of 22 February 1994 the Court:

- dismissed, unanimously, the government's preliminary

objections;

- held, by six votes to three, that Article 8 (art. 8) applied

in this case;

- held, by five votes to four, that there had been a breach of

Article 14 taken together with Article 8 (art. 14+8);

- held, unanimously, that it was unnecessary to determine

whether there had also been a breach of Article 8 (art. 8) taken

alone;

- held, unanimously, that Switzerland was to pay the

applicant, within three months, 20 000 Swiss francs in respect of

costs and expenses;

- dismissed, unanimously, the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of the

Convention;

Having invited the Government of the Swiss Confederation to

inform it of the measures which had been taken in consequence of

the judgment of 22 February 1994, having regard to its obligation

under Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of the Swiss Confederation gave the

Committee information about the measures taken in consequence of

the judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that on 7 March 1994 the Government of

the Swiss Confederation paid the applicants the sum provided for in

the judgment of 22 February 1994,

Declares, after having taken note of the information supplied

by the Government of the Swiss Confederation, that it has exercised

its functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (94) 61

Information provided by the Government of the Swiss

Confederation during the examination of the Burghartz

case by the Committee of Ministers

On 1 July 1994, an amendment to Section 177.a of the Civil

Status Ordinance entered into force of which the first

sub-paragraph reads as follows:

"The fiancée may declare to the officer of the Civil Register

that she wishes to conserve, after the marriage, the name

which she has borne until then, followed by the family name

(Article 160, sub-paragraphs 1 and 2 of the Civil Code). The

fiancé has the same possibility when both fiancés request to

be allowed to bear, after the marriage, the name of the wife

as family name (Article 30, sub-paragraph 2, of the Civil

Code)."

A transitional provision, Section 188.i, stipulates as

follows:

"If the fiancés have been authorised prior to 1 July 1994 to

have the name of the wife as family name as from the date of

marriage (Article 30, sub-paragraph 2, of the Civil Code in

its version of 5 October 1984), the husband may, until

30 June 1995, declare to the officer of the Civil Register

that he wishes to add the name he bore before marriage before

the family name.

A man born in Switzerland who bears the family name of his

wife in accordance with foreign law may also make such a

declaration."

The applicant has availed himself of the possibility offered

by the transitional provisions and bears today officially the name

of Schnyder Burghartz. Accordingly, the government considers that

his request for a reopening of the proceedings before the Federal

Court has become devoid of purpose and that the situation is the

same with regard to his request to the cantonal authorities to be

allowed to change his name in conformity with Article 30,

sub-paragraph 1, of the Civil Code.

In the light of the foregoing, the Government of Switzerland

considers that it has fulfilled the obligations imposed on it under

Article 53 (art. 53) of the European Convention on Human Rights.

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