DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

The rules of domestic law dealt with in this case had no prejudicial effect on the applicants of a sufficient severity to bring it within the proper scope of international protection of human rights. In my opinion Article 8 (art. 8) of the Convention is not, in the circumstances, applicable and there was accordingly no violation.

DISSENTING OPINION OF JUDGES PETTITI AND VALTICOS

(Translation)

1. We consider that Article 8 (art. 8) of the Convention, on which the Court ’ s reasoning mainly rests, is not applicable to the assignment of married couples ’ family names, at least in circumstances such as those in the instant case. Not only does this Article (art. 8) not expressly refer to this issue, or even to naming in general, but political, legal, social and religious conceptions still vary so much from one country to another in this field, which is still in the process of change, that to claim to impose in this instance this or that view concerning the rules that should be followed in the matter of married or divorced couples ’ family names would certainly to be to go beyond the scope of Article 8 (art. 8) and of the undertakings entered into by the States.

While, as the majority of the Court hold, the principle of the equality of the sexes admittedly is today "a major goal in the member States of the Council of Europe" and while the Court cannot ignore changes of views in this field, it does not follow that an extension of the scope of Article 8 (art. 8) of the Convention is justified, as the Court considers.

2. As in the determination of nationality, the legislation on assigning names must remain within the State ’ s domain and does not come within the ambit of the Convention. It is well known that views on the assignment and choice of surnames and first names vary within each national system, both as regards births and as regards marriages and divorces. In different countries it would be possible to find hundreds of variants. Creating a right to choose names freely on the basis of such a minimal case as Mr and Mrs Burghartz ’ s would have undue consequences and might lead to numerous applications lacking any proper justification. The couple had already been authorised to substitute the name "Burghartz" for the name "Schnyder".

3. In the present case, having regard to the fact that the couple had been allowed to change their name, the Swiss authorities ’ refusal cannot, in our view, be regarded as amounting to a discriminatory infringement of the equality of the sexes.

Basically, we are emphasising that in this instance the Chamber ’ s interpretation is an extreme one, especially as, while the case is admittedly not of major importance in itself, the principle could lead too far in a Europe that is becoming more and more varied and in a field in which legal provisions, like opinions, are still very varied.

PARTLY DISSENTING OPINION OF JUDGE RUSSO

(Translation)

I share the majority ’ s opinion as to the applicability of Article 8 (art. 8) in this case.

As to the merits, on the other hand, I conclude that there has been no breach, for the same reasons as Mr Pettiti and Mr Valticos in point 3 of their dissenting opinion.

[*]  Note by the Registrar: The case is numbered 49/1992/394/472. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 280-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.