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JOHANSSON v. FINLAND - 10163/02 [2007] ECHR 711 (6 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/711.html
Cite as:
[2007] ECHR 711
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FOURTH
SECTION
CASE OF
JOHANSSON v. FINLAND
(Application
no. 10163/02)
JUDGMENT
STRASBOURG
6
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Johansson v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 7 November 2006 and on 10 July 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 10163/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Finnish nationals, Mr Mika Johansson and
Ms Jaana Johansson (“the applicants”), on 6 February
2002.
The
applicants, who had been granted legal aid, were represented by Mr
Markku Fredman, a lawyer practising in Helsinki. The Finnish
Government (“the Government”) were represented by their
Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The
applicants alleged that the refusal to register a name chosen for
their son violated their rights under Articles 8 and 14 of the
Convention.
By
a decision of 7 November 2006, the Court declared the application
admissible.
The
applicants and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1970 and 1967 respectively
and live in Rajamäki. They have a son, born on 2 May 1999.
The parents chose the name “Axl Mick” for
their son. On 8 July 1999 the Hyvinkää Population
Registration Authority (maistraatti, magistraten) refused the
applicants' application to register this forename under section 32b,
subsections 2(1) and 3(2) of the Names Act (nimilaki, namnlagen;
see paragraph 16 below) as this form of spelling it did not comply
with Finnish name practice.
The
applicants appealed to the then Uusimaa County Administrative Court
(lääninoikeus, länsrätten, later replaced
by the Helsinki Administrative Court (hallinto-oikeus,
förvaltningsdomstolen). They argued that the name “Axl”
was common in Denmark and Norway, and it was also used in Australia
and the United States. It was pronounceable in the Finnish language
and was not incompatible with Finnish name practice. There were at
least three persons with that name registered in the Population
Information System (väestötietojärjestelmä,
befolkningsdatasystemet) of Finland. Furthermore, they might
move abroad later.
The
State representative appointed by the State Provincial Office
(lääninhallituksen määräämä
asiamies, ombudsman förordnad av länssyrelsen) was
invited to file an opinion with the County Administrative Court. In
his opinion, the name should have been accepted for registration
since due to increasing international contacts and co-operation,
registration of a name could not be rejected on the sole basis that
it was contrary to domestic name practice.
In
its submissions to the court the Advisory Committee on Names
(nimilautakunta, nämnden för namnärenden)
considered that the proposed name was incompatible with Finnish name
practice and that the applicants had not adduced adequate reasons for
choosing it.
In
response to these observations, the applicants maintained that they
should be allowed to name their son “Axl” as the
Population Registration Authority had registered various other
forenames, such as “Minja”, “Tertta”,
“Jonina”, and “Dersim”, which, in the
applicants' view, were modified forenames and contrary to Finnish
name practice in these forms.
The
Helsinki Administrative Court rejected their appeal on 3 October
2000. The court referred to the Names Act, according to which a name
could, although being incompatible with domestic name practice, be
accepted if a person on the basis of nationality, family relations or
some other special circumstance had a connection with a foreign State
and the proposed forename accorded with the name practice of that
State. The name could also be accepted for other valid reasons (see
paragraph 16 below). The court concluded that the arguments presented
by the applicants were insufficient to allow the forename to be
registered.
In
their application to the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen) the
applicants claimed that it was open to interpretation whether
the name “Axl” was contrary to the Names Act. They
contended that some priests and Population Registration Authorities
would have accepted the name. Furthermore, at least three Finnish
persons already had that name. In their view the name “Axl”
should have been accepted for their son because it had been accepted
for other persons. The name fulfilled the criteria of the Names Act
in that it was clearly a male name and could not cause any harm to
their son. Further, they had used the name in family circles.
On
20 September 2001 the Supreme Administrative Court upheld the
decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
Names Act (Act No. 694/1985, as amended by Act No. 253/1991),
contains provisions on names. Under section 32a a child has to be
given one to three forenames upon his/her birth. The chosen name
shall be declared to the Population Registration Authority or the
church for registration.
The
Finnish legislation does not contain any provision as to how a
forename has to be chosen. There exist, however, almanacs on Finnish,
Finnish-Swedish, Sami and orthodox names, outlining domestic name
practice. A forename which is not mentioned in an almanac may also be
accepted for registration if there are no general obstacles to
permitting it under section 32b of the Names Act, subsections 2 and 3
of which read as follows:
“2. In the absence of a reason mentioned in
subsection 3 the following categories of names cannot be accepted for
a forename:
1) a name which by virtue of its form or spelling is
incompatible with domestic name practice;
2) a female name for a boy and a male name for a girl;
3) a surname...;
4) a name if it has already been given to a person's
sibling.
3. A forename which does not comply with the
requirements in subsection 2 may, however, be permitted:
1) on the grounds of a religious tradition;
2) if a person on the basis of nationality, family
relations or some other special circumstance has a connection with a
foreign State and the proposed forename accords with the practice of
the said State; or
3) if some other valid reason is considered to exist.”
The
Advisory Committee on Names, subordinate to the Ministry of Justice,
gives advisory opinions to the authorities and courts on the
application of the Names Act. It also observes the domestic name
practice and proposes legislative amendments.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that the refusal to register the forename “Axl”
for their son amounted to a violation of their right to respect for
their private and family life as guaranteed by Article 8, which reads
as follows:
“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. The parties' submissions
1. The applicants
The
applicants stressed that the Convention is a living instrument which
must be interpreted in the light of present-day conditions. For
example, the case of Salonen v. Finland ((dec.) no. 27868/95,
2 July 1997), which concerned the refusal to register the name “Ainut
Vain Marjaana” (“The One and Only Marjaana”), was
brought before the then Commission in 1995, the year when Finland
joined the European Union. Since then, both Europe and the world as a
whole had changed and national borders had lost their traditional
meaning. The mixing of various cultures and languages was natural and
should also be officially accepted. In the light of this, the
question had to be asked: how long can a Contracting State justify
its national Names Act and refuse to register a forename solely on
the basis that the name would not be in compliance with domestic name
practice.
The
name “Axl” was not that different from names such as
“Alf”, “Ulf” or “Axel”, which
were all accepted in Finland. Nor had it caused prejudice to their
child. The Government certainly enjoyed a margin of appreciation.
However, this margin had substantially decreased in this sphere in
recent years.
The
applicants shared the Government's view that a child could not be
given any forename. The refusal of a name should, however, be based
on objective reasons and applied equally to all citizens. If
exceptions were made, they should be justified. They considered that
the Government had not adduced any argument as to why it had been
justified to register the forename “Axl” in six other
cases. They maintained that the Helsinki Population Register
Authority, which they had contacted, had stated that the forename
“Axl” would have been registered “without any
problem”. The refusal to register officially the forename
“Axl” meant that the applicants were obliged to change
their son's name.
Finally,
the forename “Axl” would have been accepted if they had
had links with a foreign State and the chosen name had accorded with
the name practice of that State. This, in their view, indisputably
placed persons who were Finnish citizens by birth in an unequal
position vis-à-vis persons who were born in or had
other connections with a foreign country. In their opinion a person's
national origin or family relationship was not a valid reason which,
according to the Court's case-law, could be held to be objectively
and justified, given in particular the evolving nature of the
Convention.
2. The Government
The
Government considered that the present application did not disclose
an interference with the applicants' rights under Article 8 § 1.
As noted by the Advisory Committee on Names in its submissions
to the Administrative Court, the forename “Axel” could
have been registered, and the name “Axl”, chosen by the
parents, could still have been used within the family circle. In the
Government's view, any alleged prejudice caused by the one-character
difference between the spellings of the official forename registered
in the Population Information System and the forename used socially
was insignificant.
As
to the legitimacy of the aim pursued, the Government observed that
the name practice followed in a State was closely linked to the
cultural and linguistic history and identity of that State. This was
especially true in a small linguistic area like Finland, where
efforts to maintain a distinctive name practice were particularly
justified. Moreover, the Names Act was aimed at protecting children
from being given unsuitable names.
It
was possible to deviate from domestic name practice in certain
situations under the Names Act. A child could be given a forename
compatible with the name practice of his or her own State of
nationality, even if this forename did not fulfil the requirements of
section 32b, subsection 2 of the Names Act. In addition to
nationality, family relations or another particular circumstance
might also constitute a substantive connection with a foreign State.
The aim of this provision was to protect minorities and it was
intended to permit, for instance, the giving of forenames to
immigrants who might later return to their State of nationality or
wished to continue following the name practice of that State for
linguistic or cultural reasons. The present applicants, however, fell
outside that category. Nothing in the instant case indicated that the
decision not to allow registration of the forename “Axl”
was arbitrary.
The
Government did not contest that by the time of the birth of the
applicants' son, three persons with the name “Axl” had
been included in the Population Information System. By September 2005
five persons had been registered with that name. One had been born
abroad and had dual nationality. The others were born in Finland and
were Finnish nationals. In the Government's view, the application of
the Names Act in the instant case fell squarely within the State's
margin of appreciation.
Finally,
the Government submitted that name practice was evolving all the
time. Thus, a name that had not been accepted might later gain
acceptance and become compatible with domestic name practice within
the meaning of the Names Act.
B. The Court's assessment
1. The applicability of Article 8
The
Court ruled in the case of Guillot v. France (judgment of
24 October 1996, Reports of Judgments and Decisions
1996 V, § 22) that choice of a child's forename by its
parents comes within their private sphere. The Court observes that
the subject-matter of the complaint falls within the ambit of Article
8 (see also Stjerna v. Finland, judgment of 25 November
1994, Series A no. 299 B, § 37, Burghartz
v. Switzerland, judgment of 22 February 1994, Series A
no. 280 B, § 24). Article 8 is therefore
applicable in the instant case. Indeed, this has not been contested
by the parties.
2. Whether the case involves a positive obligation or
an interference
Although the object of Article 8 is essentially that of protecting
the individual against arbitrary interference by the public
authorities, it does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect
for private and family life. The boundaries between the State's
positive and negative obligations under Article 8 do not lend
themselves to precise definition. The Court has held that not all
regulation of names will necessarily constitute an interference.
While it is true that an obligation to change one's name would be
regarded as an interference, the refusal to allow an individual to
adopt a new name cannot necessarily be considered an interference
(see Stjerna, cited above, § 38). The applicable
principles are nonetheless similar. In particular, in both contexts
regard must be had to the fair balance which has to be struck between
the competing interests; and in both contexts the State enjoys a
certain margin of appreciation (see, inter alia, Evans v.
the United Kingdom [GC], no. 6339/05, § 75, ECHR
2007-).
In
the present case, the Court finds that the principal issue is whether
in the special circumstances of the case the application of the Names
Act struck a fair balance between the competing public and private
interests involved.
3. Compliance with Article 8
The
Court reiterates that in cases arising from individual applications
its task is not to review the relevant legislation or practice in the
abstract; it must as far as possible confine itself, without
overlooking the general context, to examining the issues raised by
the case before it (Olsson v. Sweden (no. 1),
judgment of 24 March 1988, Series A no. 130, § 54).
Consequently, the Court's task is not to substitute itself for the
competent Finnish authorities in determining the most appropriate
policy for regulating names in Finland. It is for the Court to review
under the Convention whether the domestic authorities' refusal to
register the chosen name in the instant case in the exercise of their
margin of appreciation, is capable of amounting to an infringement of
the applicants' rights guaranteed by Article 8 (see mutatis
mutandis Stjerna, § 39). The margin of appreciation
which the State authorities enjoy in the sphere under consideration
is wide (see, inter alia, Stjerna, § 39 and
Mentzen alias Mencena v. Latvia (dec.), no. 71074/01, ECHR
2004-XII).
The
Court found no violation of the applicants' rights under Article 8
in the case of Guillot (cited above, § 27). In that
case the prejudice caused by the refusal to register the forename
chosen for the applicants' child, “Fleur de Marie”, was
found not to be sufficient to raise an issue of failure to respect
the applicants' private and family life as the alternative name
“Fleur-Marie” was allowed. In reaching this conclusion,
the Court gave weight to the fact that the French Court of Appeal and
Court of Cassation found the name “Fleur de Marie” to be
eccentric and excessively whimsical (§§ 10-11) and likely
to harm the interests of the child. In the case of Salonen
(dec.), cited above, the Commission held that the refusal of the
Finnish authorities to allow the applicants to name their daughter
“Ainut Vain Marjaana” (The One and Only Marjaana)
could not be considered unreasonable, having regard to the aim of
protecting the child from the possible prejudice caused by a forename
which might be considered inappropriate by others.
33. The
instant application is, however, to be distinguished from the
above-mentioned cases. It was not contended either in the domestic
proceedings or in the proceedings before the Court that the
applicants' son would suffer prejudice if he were to be registered
with the name “Axl Mick” or that the parents' choice of
forename was in any way inappropriate for their son or contrary to
his interests. Furthermore, unlike in Salonen and Guillot
where no other “Ainut Vain Marjaanas” or “Fleur de
Maries” had been registered in the relevant domestic population
or civil status registers, the name “Axl” had been
accepted for official registration by the Finnish authorities,
although it was not accepted for the applicants' child.
Having
regard to the above considerations, the Court will examine whether
the respondent State's failure to register the chosen name in the
instant case raises an issue of failure to respect the applicants'
private and family life. In weighing up the different interests at
stake, consideration should be given, on the one hand, to the
applicants' right to choose a forename for their child and, on the
other hand, the public interest in regulating the choice of names.
With
regard to the public interest, the Court has accepted that legal
restrictions on changing one's name may be justified in the public
interest; for example in order to ensure accurate population
registration or to safeguard the means of personal identification
(Stjerna, cited above, § 39). Restrictions on the choice
of forenames can also be justified in the interests of the child and
society (Salonen (dec.), cited above).
The
Government argued that the objective in the application of the Names
Act was to protect a child from unsuitable names and, further, to
maintain a distinctive name practice in a small country like Finland.
The Court accepts that due regard has to
be given to the child's interests. The protection of the child
from an unsuitable name (such as ridiculous or whimsical names) is in
the public interest. As to the aim of preserving a distinctive
national name practice, the Court has acknowledged that measures
intended to protect a given language is a legitimate aim (see Mentzen
alias Mencena (dec.), cited above). Therefore, the Court can
accept that the preservation of a national name practice may be
considered part and parcel of that aim and therefore in the public
interest.
Undoubtedly,
names retain a crucial role in a person's identification (Stjerna,
cited above, § 39). In Finland, any name can be accepted for
registration, even a completely “new” name, if there are
no obstacles to its acceptance under the Names Act. Consequently, the
domestic authorities have a broad discretion in applying the Names
Act in each particular case.
As
to the instant case, the name “Axl”, chosen by the
applicants, had been used within the family circle since the
applicants' son's birth in 1999 without any difficulty. The Court
observes, as noted by the applicants, that the chosen forename “Axl”
cannot be seen to differ vastly from names which are commonly used in
Finland, such as “Alf” and “Ulf”
(see paragraph 20 above). The name was not ridiculous or
whimsical, nor was it likely to prejudice the child, and it appears
that it has not done so. It was also pronounceable in the Finnish
language and used in some other countries. Had a vowel not been
elided, it would automatically have been officially registered as a
forename. The name cannot therefore be deemed unsuitable for a child.
The Court attaches particular importance to the fact that the name
“Axl” had not been “new” since three persons
named “Axl” were found in the official Population
Information System when the applicants' son was born, and,
subsequently, at least two other children have been given the said
name. At least four of them were Finnish nationals. It is therefore
apparent that the said name had already gained acceptance in Finland,
and it has not been contended that this has had any negative
consequences for the preservation of the cultural and linguistic
identity of Finland. It is true that the margin of appreciation,
which a State enjoys in this particular sphere, is wide. However,
given the above considerations, in particular the fact that the name
“Axl” had been accepted for official registration in
other situations, it is difficult for the Court to accept the
national authorities' grounds for not registering the same name for
the applicants' child.
In the Court's view, the public interest considerations relied on by
the Government cannot be said to outweigh the interests claimed by
the applicants under Article 8 of the Convention in having their son
officially registered under a forename of their choosing. A fair
balance has therefore not been struck.
Accordingly,
there has been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
The
applicants further complained of discrimination contrary to Article
14 taken in conjunction with Article 8. Article 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.”
The
Court observes that this complaint is closely linked to the complaint
under Article 8. Given the facts and having regard to its conclusion
under Article 8 (see paragraphs 38-39 above) there is no need to
examine separately the additional complaint under Article 14 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants did not claim any pecuniary damage. Under the heading of
non-pecuniary damage they requested that the forename they had chosen
for their son be officially registered and that they be awarded
3,000 euros (EUR) for suffering and distress caused by the
alleged violation. In the alternative, should the Government fail to
secure the registration of the name, they claimed an additional EUR
30,000 for suffering and distress.
The
Government considered the claim excessive. In their view, the mere
finding of a violation would suffice. In any event, the compensation
should not exceed EUR 2,000.
There
is no doubt that the applicants have suffered some distress and
anxiety due to the refusal to register the forename they had chosen
for their son, which is not sufficiently compensated by the
finding of a violation of the Convention. Making its assessment on an
equitable basis, the Court awards the applicants EUR 2,000 under
this head.
As to
the applicants' alternative claim, the Court points out that by
Article 46 of the Convention the High Contracting Parties undertook
to abide by the final judgments of the Court in any case to which
they were parties, execution being supervised by the Committee of
Ministers. It follows, inter alia, that a judgment in which
the Court finds a breach imposes on the respondent State a legal
obligation not just to pay those concerned the sums awarded by way of
just satisfaction, but also to choose, subject to supervision by the
Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in their domestic legal order to
put an end to the violation found by the Court and to redress so far
as possible the effects (see, mutatis mutandis, Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98,
§ 249, ECHR 2000 VIII). It is not for the Court to
award additional non-pecuniary damage in this connection. The
applicants' alternative claim must therefore be rejected.
B. Costs and expenses
The
applicants requested reimbursement of the court fees incurred by them
in the Helsinki Administrative Court, namely 400 (Finnish marks
“FIM”, about EUR 67.28) and in the Supreme Administrative
Court, namely FIM 1,000 (about EUR 168.19).
They
also claimed the reimbursement of their legal costs and expenses
incurred in the proceedings before this Court, amounting to EUR 2,449
(inclusive of value-added tax, “VAT”, in the amount of
EUR 396 and translation costs EUR 253 exempt from VAT). The
legal aid paid by the Council of Europe amounting to EUR 715 had not
been deducted from those amounts.
The
Government found the total amounts claimed reasonable as to quantum.
According
to the Court's case-law, applicants are entitled to reimbursement of
their costs and expenses only in so far as it has been shown that
these have been actually and necessarily incurred and are reasonable
as to quantum. Furthermore, legal costs are recoverable
only in so far as they relate to the violation found (see, for
example, I.J.L., G.M.R. and A.K.P. v. the United Kingdom
(Article 41), nos. 29522/95, 30056/96 and 30574/96, § 18,
25 September 2001). Taking into account the
legal aid granted by the Council of Europe, the Court considers it
reasonable to award the applicants EUR 1,970 for their costs and
expenses in connection with the proceedings before the Court
(inclusive of VAT).
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of
Article 8 of the Convention;
Holds that it is not necessary to examine
separately the applicants' complaint under Article 14 of the
Convention taken in conjunction with Article 8;
Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,970 (one thousand nine hundred and seventy euros) in respect of
costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
