CASE OF STJERNA v. FINLAND
(Application no. 18131/91)
25 November 1994
In the case of Stjerna v. Finland*,
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 Rules of Court A**, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr I. Foighel,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr L. Wildhaber,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 21 June and 24 October 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 Finland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request 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 T. Grönberg, Ambassador,
Director General for Legal Affairs, Ministry for Foreign
Mr A. Kosonen, Legal Adviser,
Ministry for Foreign Affairs, Co-Agent,
Mr Y. Mäkelä, Legal Adviser,
Ministry of Justice, Adviser;
- for the Commission
Mr H. Danelius, Delegate;
- for the applicant
Mr M. Fredman, asianajaja, advokat, Counsel.
The Court heard addresses by Mr Grönberg, Mr Danelius and Mr Fredman, and also the reply to a question put by one of its members.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
In the opinion of the minority the name Tavaststjerna had been the "established" name of the applicant’s ancestors. The fact that Fredrik Stjerna, the first of his ancestors to be called Stjerna, was born out of wedlock was irrelevant. In view of the inconvenience which the present surname was causing the applicant, the County Administrative Board’s decision should be quashed and the case referred back to it.
II. RELEVANT DOMESTIC LAW AND COMPARATIVE LAW
A. Finnish legislation
1. Name changes
"(1) that the use of his current surname causes inconvenience because of its foreign origin, its meaning in common usage or its common occurrence or for any other reason;
(2) that the proposed surname has previously been used by himself or in an established way (vakiintuneesti, hävdvunnen) by his ancestors and the name change may be considered appropriate; or
(3) that a change of surname may be considered justified by changed circumstances or by any other special reasons."
A surname which was well known as the name of a particular Finnish or foreign family could not, unless there were particular reasons for doing so, be approved as a new surname (section 12 (1)).
A decision on an application for a change of surname was to be notified to the applicant and also to any person who has filed objections under section 19 (section 21) and could be the subject of an appeal by them (section 22) to the Supreme Administrative Court.
2. Population registration
Population registration was administered, at national level, by the Population Register Centre (chapter 3, section 8 of the 1970 Act on Population Registers - västökirjalaki 141/69, lag 141/69 om befolkningsböcker) and, at local level, by the evangelical-lutheran and orthodox parishes or, for persons who were not members of such parishes, by the local registration office (chapter 2, sections 3, 6 and 26).
B. Comparative law
Name changes are noted in population records, at the request of the interested person (Belgium and France) or of a public authority (France), or are done so automatically (the other ten members of the International Commission).
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS TO THE COURT
The applicant confirmed the submissions set out in his memorial to the effect that the facts of his case gave rise to violations of Article 8 (art. 8) taken alone and together with Article 14 (art. 14+8). He also reiterated his claim for compensation under Article 50 (art. 50).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
"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."
A. Scope of the issues before the Court
Before the Court he further submitted that he wished to change his surname in order to avoid a former colleague who had subjected him to threats and harassment. However, this argument was not raised before the Commission and is in any event unsubstantiated. Accordingly, the Court will limit its examination to the facts of his application as declared admissible by the Commission (see, for instance, the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75).
B. Applicability of Article 8 (art. 8)
The subject-matter of the complaint thus falls within the ambit of Article 8 (art. 8).
C. Compliance with Article 8 (art. 8)
The boundaries between the State’s positive and negative obligations under Article 8 (art. 8) do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see, for instance, the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, para. 49).
In this connection it is to be noted that in a number of Contracting States a request to change one’s name must be supported by convincing or specific reasons whereas in other States any reasons may be invoked (see paragraph 29 above) and in one State there are in principle no restrictions (see paragraph 30 above). There is little common ground between the domestic systems of the Convention countries as to the conditions on which a change of name may be legally effected. The Court deduces that in the particular sphere under consideration the Contracting States enjoy a wide margin of appreciation. The Court’s task is not to substitute itself for the competent Finnish authorities in determining the most appropriate policy for regulating changes of surnames in Finland, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, for instance, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, para. 55; and, mutatis mutandis, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 23, para. 49).
Secondly, the applicant reiterated his principal contention to the Finnish authorities, namely that, in line with the Finnish tradition of choosing names, he had opted for a surname borne by a paternal ancestor. Tavaststjerna was the only surname satisfying that tradition and differing from his present surname. The strength of his relationship to the Tavaststjerna family was primarily a matter to be assessed by himself. Particular importance should therefore be attached to the fact that, in his view, the period of approximately one hundred and sixty years between the death of the last ancestor named Tavaststjerna and his own birth was not long enough to sever the bonds linking him to that family and his sense of belonging to it.
The refusal by the Finnish authorities to permit him to change his surname to Tavaststjerna was not aimed at protecting the interests of that family; in any event such considerations were irrelevant since the applicant was a direct descendant of a Tavaststjerna. Nor could the decisions of refusal be justified on the ground of population registration requirements in Finland, as identity numbers are now used for this purpose. In this connection, the applicant argued that the 1985 Act afforded excessive protection to names in use. The refusal meant that he was forced either to continue using his inconvenient surname or to take a new one that he did not like.
In any event, in the view of the Advisory Committee on Names, the use of the name Tavaststjerna involved similar practical difficulties to those associated with Stjerna (see paragraph 12 above). In this connection the Court considers that the national authorities are in principle better placed to assess the level of inconvenience relating to the use of one name rather than another within their national society and, in the present case, no sufficient grounds have been adduced to justify the Court coming to a conclusion different from that of the Finnish authorities.
Finally, although the applicant’s current name may have given rise to a pejorative nickname, this was not a specific feature of his name since many names lend themselves to distortion.
In the light of the foregoing, the Court does not find that the sources of inconvenience the applicant complained of are sufficient to raise an issue of failure to respect private life under paragraph 1 (art. 8-1).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)
"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."
For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (ibid., p.18, para. 41).
The reason for refusing his request seems rather to have been the fact that the name Tavaststjerna had not been in use in the applicant’s family for more than two hundred years and could not therefore be said to have been in "established" use in the family, a condition for acquisition of a surname under section 10 (2) of the 1985 Act (see paragraphs 15 and 17 above). It is not contended that the latter reason was discriminatory within the meaning of Article 14 (art. 14) and, on the evidence before it, the Court has no cause to hold that it was. In short, the justification advanced by the Government appears objective and reasonable.
Having regard to the above, the Court concludes that there has been no violation of Article 14 taken together with Article 8 (art. 14+8).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 8 (art. 8) of the Convention is applicable in the present case;
2. Holds that there has been no violation of Article 8 (art. 8) of the Convention;
3. Holds that there has been no violation of Article 14 of the Convention taken together with Article 8 (art. 14+8).
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 November 1994.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the concurring opinion of Mr Wildhaber is annexed to this judgment.
CONCURRING OPINION OF JUDGE WILDHABER
Paragraph 38 of the Court’s judgment in the instant case reiterates an established but still somewhat incoherent jurisprudence. On a number of occasions the Court has stated that the "essential object" of Article 8 (art. 8) is "to protect the individual against arbitrary interference by the public authorities". It has reserved the term "interference" for facts capable of infringing the State’s negative obligations. Whenever it has found that an interference in this sense existed, the Court has examined whether the interference could be justified under paragraph 2 of Article 8 (art. 8-2). In addition, the Court has acknowledged that there could be positive obligations inherent in an effective respect for private and family life. The existence of such positive obligations must be evaluated having regard to "the fair balance that has to be struck between the general interest of the community and the interests of the individual". To this it has added rather vaguely that in the sphere of positive obligations "the aims mentioned in the second paragraph of Article 8 (art. 8-2) may be of a certain relevance". But the Court has in effect applied only the first paragraph (art. 8-1) in such instances. Moreover, it has stressed that Contracting States enjoy a wide margin of appreciation in the implementation of their positive obligations.
However, the dividing line between negative and positive obligations is not so clear-cut. In the Gaskin case, the refusal by the British authorities to grant a former child in care unrestricted access to child-care records could be considered as a negative interference, whereas a duty on the State to provide such access could arguably be viewed as a positive obligation. In the Cossey case the claim of the applicant, an operated transsexual, was that she should be issued with a fresh birth certificate showing her present sex rather than her sex at the date of birth. The refusal of the United Kingdom to carry out a modification of its system for recording civil status could be analysed either as a negative interference with the applicant’s rights or as a violation of the State’s positive obligation to adapt its legislation so as to take account of the applicant’s situation. The Keegan case against Ireland concerned the placement of a child for adoption without the natural father’s knowledge or consent, a measure permitted under Irish law. This state of affairs could be taken as a negative interference with the father’s right to respect for his family life or as a failure by Ireland to fulfil a positive obligation to confer a right of guardianship on natural fathers. Again, in the instant case of Stjerna, the refusal by the Finnish authorities to allow the applicant freely to acquire the surname of his ancestors may be perceived as either a negative or a positive interference.
In my view, it would therefore be preferable to construe the notion of "interference" so as to cover facts capable of breaching an obligation incumbent on the State under Article 8 para. 1 (art. 8-1), whether negative or positive. Whenever a so-called positive obligation arises the Court should examine, as in the event of a so-called negative obligation, whether there has been an interference with the right to respect for private and family life under paragraph 1 of Article 8 (art. 8-1), and whether such interference was "in accordance with the law", pursued legitimate aims and was "necessary in a democratic society" within the meaning of paragraph 2 (art. 8-2).
To be sure, this approach would not lead to a different result in the instant case, nor in all likelihood in the vast majority of cases of this kind. It does, however, have the advantage of making it clear that in substance there is no negative/positive dichotomy as regards the State’s obligations to ensure respect for applicable private and family life, but rather a striking similarity between the applicable principles.
* The case is numbered 38/1993/433/512. 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.
** Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
* Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 299-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.
 Belgian Linguistic judgment of 23 July 1968, Series A no. 6, p. 33, para. 7; Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31; Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 7, para. 32; X and Y v. the Netherlands judgment of 26 March 1985, Series A no 91, p. 11, para. 23; Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67; Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 14, para. 35; Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55 (c); Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 23, para. 51; W., B. and R. v. the United Kingdom judgments of 8 July 1987, Series A no. 121, respectively p. 27, para. 60, p. 72, para. 61, p. 117, para. 65; Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 15, para. 38; Niemitz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 34, para. 31; Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, para. 49; Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, para. 55.
 Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 15, para. 37; Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 17, para. 42; Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, para. 37; and similarly Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41; B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47, 53-54, paras. 44 and 63; Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, para. 55.
 Rees judgment, p. 15, para. 37; Gaskin judgment, p. 17, para. 42; Powell and Rayner judgment, p. 18, para. 41; note 2 above.
 As stated in the Keegan v. Ireland judgment, p. 19, para. 49; and the Hokkanen v. Finland judgment, p. 20, para. 55; note 2, previous page.