CASE OF BURGHARTZ v. SWITZERLAND
(Application no. 16213/90)
22 February 1994
In the case of Burghartz v. Switzerland*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 25 August 1993 and 24 January 1994,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 14 (art. 8, art. 14) of the Convention.
There appeared before the Court:
- for the Government
Mr P. Boillat, Head of the European Law
and International Affairs Section, Federal Office of
Mrs R. Reusser, Head of the Principal Private Law Division,
Federal Office of Justice,
Mr F. Schürmann, Deputy Head of the European Law
and International Affairs Section, Federal Office of
- for the Commission
Mr E. Busuttil, Delegate;
- for the applicants
Ms E. Freivogel, Rechtsanwältin, Counsel.
The Court heard addresses by Mr Busuttil, Mr Boillat and Ms Freivogel.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On 12 December 1988 their application was again refused, on the ground that they had not pointed to any serious inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife could put her own surname before the family name (see paragraph 12 below).
On 8 June 1989 the Federal Court allowed the appeal in part. While refusing to apply paragraph 2 of Article 30, which concerned only engaged couples and had no retrospective effect, it held that in the particular case there were important factors which justified applying paragraph 1 in order to allow the applicants to call themselves "Burghartz"; apart from the couple’s age and profession, account had to be taken of the differences between the relevant Swiss and German systems, which were made more acute by the fact that Basle was a frontier city.
As to Mr Burghartz’s application to be allowed to bear the name "Schnyder Burghartz", no support for it could be found in Article 160 para. 2 of the Civil Code; the drafting history showed that the Swiss Parliament, out of a concern to preserve family unity and avoid a break with tradition, had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands’. This rule therefore could not avail by analogy a husband in a family known by the wife’s surname. There was, however, nothing to prevent Mr Burghartz from using a double-barrelled name (see paragraph 13 below) or even, informally, putting his surname before his wife’s.
II. RELEVANT DOMESTIC LAW
"Men and women shall have equal rights. Equality shall be provided for by law, in particular in relation to the family, education and work ..."
"(1) The government of the canton of residence may, if there is good cause, authorise a person to change his or her name.
(2) Engaged couples shall be authorised, if they so request and if they prove a legitimate interest, to bear the wife’s surname as the family name once the marriage has been solemnised.
"(1) Married couples shall take the husband’s surname as their family name.
(2) A bride may, however, make a declaration to the registrar that she wishes to keep the surname she has borne to date, followed by the family name.
"(1) The children of married couples shall bear their family name.
Article 8a of the final section
"Within one year of the entry into force of the new Act, a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name."
PROCEEDINGS BEFORE THE COMMISSION
AS TO THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Whether or not the first applicant is a victim
The objection must therefore be dismissed.
B. Exhaustion of domestic remedies
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)
Article 8 (art. 8) provides:
"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) provides:
"The enjoyment of the rights and freedoms set forth in [the] 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."
Given the nature of the complaints, the Court, like the Commission, deems it appropriate to examine the case directly under Article 14 taken together with Article 8 (art. 14+8).
It must nevertheless be determined whether Article 8 (art. 8) applies in the circumstances of the case.
In the instant case, the applicant’s retention of the surname by which, according to him, he has become known in academic circles may significantly affect his career. Article 8 (art. 8) therefore applies.
The Commission shared this view in substance.
By providing that, as a general rule, families should take the husband’s surname (Article 160 para. 1 of the Civil Code), the Swiss legislature had deliberately opted for a traditional arrangement whereby family unity was reflected in a joint name. It was only in order to mitigate the rigour of the principle that it had also provided for a married woman’s right to put her own surname in front of her husband’s (Article 160 para. 2 of the Civil Code). On the other hand, the reverse was not justified to the advantage of a married man who, like Mr Burghartz, deliberately and in full knowledge of the consequences, invoked Article 30 para. 1 of the Civil Code to change his surname to that of his wife. It was all the more unjustified as there was nothing to prevent a husband, even in those circumstances, from using his surname as part of a double-barrelled name or in any other way informally.
In the second place, it cannot be said that a genuine tradition is at issue here. Married women have enjoyed the right from which the applicant seeks to benefit only since 1984. In any event, the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination.
Nor is there any distinction to be derived from the spouses’ choice of one of their surnames as the family name in preference to the other. Contrary to what the Government contended, it cannot be said to represent greater deliberateness on the part of the husband than on the part of the wife. It is therefore unjustified to provide for different consequences in each case.
As to the other types of surname, such as a double-barrelled name or any other informal manner of use, the Federal Court itself distinguished them from the legal family name, which is the only one that may appear in a person’s official papers. They therefore cannot be regarded as equivalent to it.
III. APPLICATION OF ARTICLE 50 (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
The Government found this amount exorbitant and suggested reducing it to CHF 10,000. The Delegate of the Commission also regarded it as inflated.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government’s preliminary objections;
2. Holds by six votes to three that Article 8 (art. 8) applies in this case;
3. Holds by five votes to four that there has been a breach of Article 14 taken together with Article 8 (art. 14+8);
4. Holds unanimously that it is unnecessary to determine whether there has also been a breach of Article 8 (art. 8) taken alone;
5. Holds unanimously that Switzerland is to pay the applicants, within three months, 20,000 (twenty thousand) Swiss francs in respect of costs and expenses;
6. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 February 1994.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Thór Vilhjálmsson;
(b) dissenting opinion of Mr Pettiti and Mr Valticos;
(c) partly dissenting opinion of Mr Russo.
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
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
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.