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BULGAKOV v. UKRAINE - 59894/00 [2007] ECHR 724 (11 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/724.html
Cite as:
[2007] ECHR 724
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FORMER
SECOND SECTION
CASE OF BULGAKOV v. UKRAINE
(Application
no. 59894/00)
JUDGMENT
STRASBOURG
11
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 Bulgakov v. Ukraine,
The
European Court of Human Rights (Former Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 22 March 2005 and 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 59894/00) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Dmitriy Bulgakov (“the
applicant”), on 21 July 2000.
The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, of the Ministry
of Justice of Ukraine.
The
applicant alleged, in particular, an unjustified interference with
his private life, in violation of Articles 8 and 14 of the
Convention, in respect of the “Ukrainianisation” of his
Russian first name in official documents.
The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
By
a decision of 22 March 2005 the Court declared the application partly
admissible.
On
1 April 2006 the Court changed the composition of its Sections (Rule
25 § 1), but this case remained with the Chamber constituted
within the former Second Section.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974 and lives in the city of Simferopol, the
Autonomous Republic of Crimea (Ukraine).
The
facts of the case, as submitted by the parties, may be summarised as
follows.
The
full name of the applicant, a Ukrainian citizen of Russian origin,
is, in Cyrillic, “Дмитрий
Владимирович
Булгаков”
(Dmitriy Vladimirovich Bulgakov). Dmitriy is the first,
or given, name; Bulgakov is the surname, while Vladimirovich
is the “patronymic” (otchestvo in Russian,
po-bat’kovi in Ukrainian) - in other words, a second
given name, derived from the father’s given name and the
appropriate gender suffix.
11. The
applicant was born on the territory of former Soviet Belorussia. His
birth certificate was issued in the Russian language. On 21 September
1990, by then living on the territory of former Soviet Ukraine, the
applicant received his first Soviet passport (паспорт
гражданина
СССР), issued in
Russian and Ukrainian. According to the applicant, in the Ukrainian
version, his name and patronymic were transliterated from Russian as
“Дмітрій
Владіміровіч”
(Dmitriy Vladimirovich).
According to the Government, the applicant’s name and
patronymic could not appear in the Ukrainian version other than in
its Ukrainian form – “Дмитро
Володимирович”
(Dmytro Volodymyrovych),
since the rules at that time knew no exceptions. (However, neither
party could submit any document to prove their assertions, because no
archives or copies of that passport exist any longer).
12. In
1993 the applicant lost his passport and, given a lack of new
Ukrainian passport forms, he was issued with a special temporary
identity certificate drafted in Russian.
In
December 1997 the applicant applied for and received a Ukrainian
citizen’s internal passport (паспорт
громадянина
України) from the
Directorate General of the Ukrainian Ministry of the Interior in the
Crimea (Головне
управлiння
Мiнiстерства
внутрiшнiх справ
в АР Крим, “the
Directorate”). Page 2 of this document is drawn up in
Ukrainian, and the applicant’s given name and patronymic appear
in their Ukrainian form “Дмитро
Володимирович”
(Dmytro Volodymyrovych). However, on page 3 of the passport,
which is in Russian, his whole name is written in its original
Russian form.
A. The proceedings concerning the applicant’s
external passport
In
June 1998 the applicant applied to the Directorate for a Ukrainian
citizen’s passport for travel abroad (паспорт
громадянина
України для
виїзду за кордон;
an “external passport”). It appears from the case file
that, when submitting his application, the applicant was obliged to
complete and sign a form on which he gave his given name as Dmytro.
This “Ukrainianised” form of his given name (“ДМИТРО
/ DMYTRO”) appears on the first page of the passport, which
is in Ukrainian and English; there is no mention of the patronymic.
The applicant challenged this “Ukrainianisation” by means
of an internal appeal, submitted to the management of the
Directorate’s local branch, which dismissed it.
In
July 1998 the applicant appealed to the Kievskiy District Court,
Simferopol. He submitted that there had been a violation of his right
to the integrity of his given name, and asked the court to order the
authorities to issue him with a new passport and to pay him 1,700
hryvnas for non-pecuniary damage.
After
adversarial proceedings, the court dismissed the appeal in a judgment
of 16 August 1999. The judgment noted that the disputed spelling
complied with the relevant regulations, which stated that all entries
on the first page of an external passport were to be in Ukrainian and
English. The court also noted that all of the principal entries in
such a passport were to follow the model of the corresponding entries
in the internal passport issued to the same person. On the first page
of his internal passport, the applicant’s given name had been
entered as Dmytro; accordingly, this spelling was also to be
used in the external passport. In addition, the court pointed out
that the applicant himself had written his given name as Dmytro
on the passport application form; consequently, his objections were
unfounded.
The
applicant appealed to the Crimea Supreme Court. He vehemently denied
that he had used the form Dmytro on the application form. In
his opinion, this was a manifestly erroneous finding by the court of
first instance, since he had, without question, indicated that his
given name was Dmitriy and not Dmytro.
In
a judgment of 2 February 2000, the Crimea Supreme Court dismissed the
appeal and upheld the findings of the court of first instance.
The
applicant subsequently made several applications to the prosecution
service and the President of the Crimea Supreme Court for supervisory
review of the final decision, all of which were dismissed.
B. The proceedings concerning the applicant’s
internal passport
In
April 2000 the applicant submitted an internal appeal to the head of
the Directorate’s local branch. He challenged the fact that his
given name and patronymic had been translated into Ukrainian; in
particular, he alleged that, even on the Ukrainian page of the
passport, these ought to have appeared in their original form merely
transliterated into the Ukrainian alphabet, not replaced by their
Ukrainian equivalents. Consequently, according to the applicant, his
name ought to have been written on page 2 of the passport as “Дмiтрiй
Владiмiровiч”
(Dmitriy Vladimirovich), since the Cyrillic grapheme ‘И’
reads as [i] in Russian but as [y]
in Ukrainian. The appeal was dismissed.
In
June 2000 the applicant lodged an application with the Kievskiy
District Court of First Instance, Simferopol, for an order requiring
the authorities to issue him with a new passport in which his given
name and patronymic would be written in their original form on both
the Russian and Ukrainian pages. In his submissions he emphasised,
inter alia, that he belonged to the Russian minority and that
consequently, under section 12 of the National Minorities Act, he was
entitled to use the original, Russian form of his name. According to
the applicant, when entering his given name and patronymic on page 2
of the passport, the authorities would have been entitled to
transliterate them into the Ukrainian alphabet, but they had not been
entitled to replace them with Ukrainian equivalents.
After
adversarial proceedings, the Court of First Instance dismissed the
appeal as unfounded. The judgment noted that the disputed passport
had been drawn up in compliance with the Passports of Ukrainian
Citizens Order, which stated that the holder’s personal data
were to appear “in Ukrainian and in Russian”. Finally,
the court pointed out that page 3 of the passport had been drawn up
in Russian, and that all the elements of the applicant’s name
appeared on it in their original form; accordingly, there had been no
violation of the applicant’s fundamental rights.
The
applicant appealed against this judgment to the Crimea Supreme Court
which, in a judgment of 30 August 2000, also dismissed his appeal. In
the Supreme Court’s opinion, the provision by which the
holder’s personal data were to appear “in Ukrainian and
in Russian” indeed meant that the given name, patronymic and
surname were “to comply with the requirements of the Ukrainian
language, in application of the rules governing literary
translation”. Like the Court of First Instance, the Supreme
Court added that there had been no violation of the right to the
integrity of one’s name in the present case, since all the
entries on page 3 of the passport had been in Russian.
As
with his external passport, the applicant made several applications
to the prosecution service and the President of the Crimea Supreme
Court for a supervisory review of the final decision. These appeals
were all dismissed.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL
MATERIALS
A. Domestic Law
1. Constitution of Ukraine, 1996
The
relevant parts of Article 10 of the Constitution provide:
“The official language in Ukraine is Ukrainian.
The State ensures the comprehensive development and
functioning of the Ukrainian language in all spheres of social life
throughout the entire territory of Ukraine.
In Ukraine, the free development, use and protection of
Russian, and other languages of the national minorities of Ukraine,
is guaranteed...”
2. Law of 25 June 1992 on National Minorities in
Ukraine
Section
12 of the Law provides:
“Every Ukrainian citizen is entitled to have a
surname, given name and patronymic [corresponding to his or her
national origin].
Citizens are entitled, in accordance with the rules in
force, to revert to their [original] surname, given name and
patronymic.
Citizens whose ethnic tradition does not involve the use
of a ‘patronymic’ [po-bat’kovi] are entitled
to indicate only their surname and given name in [the] documents;
their birth certificate [may] indicate the surnames of the father and
of the mother.”
3. Legislation concerning the passports of Ukrainian
citizens
Ukrainian
citizens normally have two passports, each of which has a distinct
function. The internal passport (also called the “Ukrainian
citizen’s passport”) is the basic identity document,
proving the holder’s identity in all administrative and
socio-economic relations throughout the country. In contrast, the
external passport is a travel document for use abroad.
The
relevant provisions of Parliamentary Order no. 2503-XII of 26 June
1992 concerning the passports of Ukrainian citizens (Положення
“Про паспорт
громадянина
України”) read as
follows:
“... 4. All the entries contained in the
passport and all the information concerning its holder shall be made
in Ukrainian and Russian....”
“...16. An exchange of passports shall be
conducted in case of:
A change (replacement) [зміни
(переміни)]
of surname, given name or patronymic...”
[Annex]
Description of the Ukrainian citizen’s passport
“... On the upper section of page 2 of the
passport, [there is] a space for the holder’s identity
photograph.... Lower down, the surname, given name and patronymic...
[are] in Ukrainian...
On page 3 of the passport – the surname, given
name and patronymic ... [are] in Russian...”
According
to Article 15 of Rule no. 231 of 31 March 1995 on the preparation and
issue of Ukrainian citizens’ passports for travel abroad and
travel documents for children, their temporary seizure and
confiscation (Правила
оформлення
і видачі паспортів
громадянина
України для
виїзду за кордон
і проїзних
документів
дитини, їх
тимчасового
затримання
та вилучення),
external passports are to be drawn up in Ukrainian and English.
The
technical arrangements for the issue of passports are set out in
ministerial orders or instructions. In particular, in accordance with
the Minister of the Interior’s instruction no. 316 of 17 August
1994 on the passports of Ukrainian citizens, the passport holder must
sign both the passport application form and the passport itself, thus
confirming the accuracy of the information appearing in them.
4. Legislation concerning a
change of name
A
Regulation concerning the procedure for examining applications for a
change of surname, given name or patronymic from citizens of Ukraine
was approved by the Decision of the Cabinet of Ministers of Ukraine
on 27 March 1993.
According
to that Regulation, any citizen of Ukraine who has reached the age of
sixteen can apply for a full or partial change of name to the civil
status registration department responsible for the district in which
the individual resides. The applicant must pay a fee and provide a
birth certificate and photograph and, if he or she is married and has
children, the marriage certificate and the birth certificates of the
children.
The
civil status registration department verifies the documents and their
archived records and sends the file to the local police department.
Within a month, the latter shall make the necessary checks of the
person’s identity in order to prevent abuse of the procedure by
people fleeing from justice, avoiding the payment of child
maintenance, or pursuing other fraudulent purposes. The case file is
then returned to the civil status registration department together
with an opinion on the question of the proposed change of name. In
case of police objections or if the applicant is under criminal
investigation, on trial or convicted, the civil status department
will refuse the application. This refusal can be challenged in the
courts.
The
whole procedure should normally take three months, unless there is a
need to restore some lost archive documents concerning the civil
status of the applicant.
If
the application for a change of name is granted, the individual must
change the official documents, like the passport, within a month.
B. International Law
The
Council of Europe’s Framework Convention for the Protection of
National Minorities was opened for signature on 1 February 1995 and
entered into force in respect of Ukraine on 1 May 1998. Article 11 §
1 of that Convention provides as follows:
“The Parties undertake to recognise that every
person belonging to a national minority has the right to use his or
her surname (patronymic) and first names in the minority language and
the right to the official recognition of them, according to
modalities provided for in their legal system.”
Paragraph
68 of the explanatory report to the Framework Convention states:
“In view of the practical implications of this
obligation, the provision is worded in such a way as to enable
Parties to apply it in the light of their own particular
circumstances. For example, Parties may use the alphabet of their
official language to write the name(s) of a person belonging to a
national minority in its phonetic form. Persons who have been forced
to give up their original name(s), or whose name(s) has (have) been
changed by force, should be entitled to revert to it (them), subject
of course to exceptions in the case of abuse of rights and changes of
name(s) for fraudulent purposes. It is understood that the legal
systems of the Parties will, in this respect, meet international
principles concerning the protection of national minorities.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant considered himself to be the victim of an unjustified
interference with his right to respect for private and, possibly,
family life. This right is enshrined in Article 8 of the Convention,
which provides insofar as relevant as follows:
“1. Everyone has the right to respect
for his private and family life, ...
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 ...
for the protection of the rights and freedoms of others.”
A. Parties’ submissions
The
Government denied any interference with the applicant’s rights
under Article 8. They pointed out that the applicant’s
forenames had been entered in his internal passport in both variants
(the “Ukrainianised” and original form), and that any
complaint on this point was ill-founded. The external passport was of
secondary importance compared to the internal passport, since it was
reserved exclusively for travel abroad. Thus, any possible
inconvenience linked to its use was insufficient to create an
“interference” within the meaning of Article 8 § 1
of the Convention. In any event, the restrictions imposed on the
applicant and any inconvenience he suffered were minimal compared to
the situations previously examined by the Court under Article 8 (cf.
in particular, Stjerna v. Finland, judgment of 25 November
1994, Series A no. 299-B; Guillot v. France, judgment of
24 October 1996, Reports of Judgments and Decisions
1996-V). Indeed, if the applicant was not happy with the official
rendering of his names, there was nothing to prevent him submitting a
request to the competent authorities for them to be changed.
Supposing,
nonetheless, that the impugned situation could be construed as an
interference in the applicant’s private life, the Government
were convinced that such an interference complied with the
requirements of Article 8 § 2, namely that it was in accordance
with the law, pursued a legitimate aim and was “necessary in a
democratic society” in order to achieve that aim. In this
regard, they explained that the “Ukrainianisation” of the
given names of individuals belonging to the two other nations of the
Eastern Slavic group (i.e. Russians and Belarussians) represented an
old and stable practice. In the three nations, every given name of
Christian origin was considered to be one and the same, and typing
differences (“Dmytro/Dmitriy”) had always
been perceived as a matter of pure form. In other words, this given
name had taken on its own phonetic form – a sort of local
variation – in each Slavic language, which explained the
difference in pronunciation and written form. This tradition also
concerned the given names of famous individuals: thus, Tsar Peter the
Great (Piotr in Russian) was called Petro in Ukrainian;
Catherine II (Yekaterina) was transcribed as Kateryna;
Mikhail Gorbatchev and Vladimir Ulyanov became Mykhaylo
and Volodymyr when they were mentioned in a Ukrainian
text. A similar practice existed in Russia, where a Ukrainian named
Dmytro would always be called Dmitriy. Finally, the
Government emphasised that the applicant had reported no practical
inconvenience arising from the situation of which he complained. The
impugned interference was therefore in no way disproportionate to the
aims pursued.
The
applicant disputed the Government’s arguments. He stressed that
he was not requesting that his given name or patronymic be changed.
His only request concerned the general use of their original -
Russian - form. In this connection, he pointed out that, when the
given name and patronymic “Dmitriy Vladimirovich”
were transcribed as “Dmytro Volodymyrovych”, they
sounded entirely different. This could pose problems, especially in
the Crimea, where the majority of the population was Russian-speaking
and where anti-Ukrainian sentiment still existed. In particular, the
applicant insisted that, by imposing the “Ukrainianised”
form of his given name as its principal form, the Ukrainian
authorities had infringed his rights under section 12 of the
Ukrainian National Minorities Act.
The
applicant also related a series of practical inconveniences which he
had suffered as a result of the adoption of the “Ukrainianised”
form as the authoritative version of his name. Thus, all official
documents issued by the Ukrainian authorities contained only the
version “Dmytro Volodymyrovych”, and practically
never “Dmitriy Vladimirovich”. In addition, even
when he travelled to Russia, the Russian authorities refused to take
into consideration the Russian form of his given name, on the ground
that the only form included in his external passport was “Dmytro”.
Furthermore,
the applicant explained that he had never requested that his given
name and patronymic be entered in Ukrainian documents using the
Russian spelling as it stood, namely “Дмитрий
Владимирович”.
He stated that he had always agreed that, in Ukrainian, they be
written as “Дмiтрiй
Владiмiровiч”.
In other words, he fully accepted that the Cyrillic letter u (И)
be changed to an i in order to preserve the pronunciation as
faithfully as possible.
B. The Court’s case-law
Neither
of the parties sought to question the applicability of Article 8 of
the Convention in the instant case, and the Court sees no reason to
do so. The Court has, on several occasions, recognised the
applicability of Article 8 – in relation to both “private
life” and “family life” – to disputes
concerning people’s surnames and forenames (see the judgments
in Burghartz v. Switzerland, 22 February 1994, Series A no.
280 B, p. 28, § 24; Stjerna v. Finland, 25
November 1994, Series A no. 299 B, p. 60, § 37;
Guillot v. France, 24 October 1996, Reports 1996 V,
pp. 1602-1603, § 21; see also Szokoloczy-Syllaba and
Palffy de Erdoed Szokoloczy-Syllaba v. Switzerland (dec.),
no. 41843/98, 29 June 1999; Bijleveld v. the Netherlands
(dec.), no. 42973/98, 27 April 2000; Taieb, known as
Halimi v. France (dec.), no. 50614/99, 20 March 2001;
G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27
September 2001; Šiškina and Šiškins
v. Latvia (dec.), no. 59727/00, 8 November 2001; Petersen
v. Germany (dec.), no. 31178/96, 6 December 2001). The
subject matter of the application thus falls within the ambit of
Article 8 of the Convention.
The
Court further refers to the inadmissibility decisions in the cases of
Mentzen alias Mencena v. Latvia (no. 71074/01,
ECHR 2004-XII) and Kuharec alias Kuhareca v. Latvia (no.
71557/01, 7 December 2004). In both those cases, the Court examined
whether the addition of a variable feminine ending to a foreign
surname (in the Kuharec case) and/or the transliteration of a
foreign surname in accordance with Latvian phonetic rules (in the
Mentzen case) breached Article 8 of the Convention. In both
those decisions, the Court affirmed the following principles:
(a) Although the spelling of surnames and forenames concerns
essentially the area of the individual’s private and family
life, it cannot be dissociated from the linguistic policy conducted
by the State. Linguistic freedom as such
is not one of the rights and freedoms governed by the Convention.
Thus, with the exception of the specific rights stated in Articles 5
§ 2 and 6 § 3 (a) and (e), the Convention per se does
not guarantee the right to use a particular language in
communications with public authorities or the right to receive
information in a language of one’s choice. However, there is no
watertight division separating linguistic policy from a field covered
by the Convention, and a measure taken as part of such policy may
fall within certain Convention provisions. Consequently, provided
that the rights protected by the Convention are respected, each
Contracting State is at liberty to impose and regulate the use of its
official language or languages in identity papers and other official
documents.
(b) A language is not in any sense an abstract value. It
cannot be divorced from the way it is actually used by its speakers.
Consequently, in adopting the national language, the State
undertakes, in principle, to guarantee its citizens the right to use
that language both to impart and to receive information, without
hindrance not only in their private lives, but also in their dealings
with public authorities. In the Court’s view, it is first and
foremost from this perspective that measures intended to protect a
given language must be considered. In other words, implicit in the
notion of an official language is the existence of certain subjective
rights for the speakers of that language. Consequently, in the
majority of cases, it may be accepted that a measure intended to
protect and promote a national language corresponds to the protection
of the “rights and freedoms of others”, within the
meaning of Article 8 § 2 of the Convention. Furthermore, the
authorities, especially the national courts, are in principle in a
better position than the international judge to give an opinion on
the need for interference in such a sensitive area.
(c) The process whereby surnames and forenames are given,
recognised and used is a domain in which national particularities are
the strongest and in which there are virtually no points of
convergence between the internal rules of the Contracting States.
This domain reflects the great diversity between the Member States of
the Council of Europe. In each of these countries, the use of names
is influenced by a multitude of factors of an historical, linguistic,
religious and cultural nature, so that is extremely difficult, if not
impossible, to find a common denominator. Consequently, the margin of
appreciation which the State authorities enjoy in this sphere is
particularly wide.
(d) The fact that a country finds itself in an isolated position
as regards one aspect of its legislation does not necessarily imply
that that aspect offends the Convention, particularly in a field
which is so closely bound up with the cultural and historical
traditions of each society.
On
the basis of those principles, the Court concluded that there was no
appearance of a violation of Article 8 in the aforementioned cases of
Mentzen and Kuharec. In particular, it stressed that
(a)
the original written version of each of the applicants’ names
was entered in their respective passports;
(b) in
the second case, the difference between the original spelling and the
adapted spelling was minimal;
(c)
the disputed measure did not prevent the identification of the
applicants; and
(d)
the practical difficulties which they may have experienced on that
account were either insignificant (the Mentzen case) or
non-existent (the Kuharec case).
C. Application of the Court’s case-law to the
instant case
While
endorsing the principles established in the preceding case-law, the
Court considers that the present application differs from the two
aforementioned cases.
The
Mentzen and Kuharec cases concerned simple
transliterations (i.e. the straightforward adaptation of foreign
surnames to the customary rules governing the phonetics and grammar
of a given language). Such an adaptation is comparable to the
transliteration into Western languages of Russian family names (for
example: Чайковский
– Chaikovsky – Tchaïkovski –
Tschaikowski – Ciaikovski; or Ельцин
– Eltsine – Yeltsin – Jelzin, etc.), or to
the addition by the Romans of variable endings to Gaul or German
names (Ariovistus, Arminius, Tudrus,
Hariulfus). In such cases, even if a proper noun is
adapted to the host country’s language, it nonetheless retains
its foreign sound, unique to the language of origin. Its holder’s
ethnic and national identity is therefore not affected. Thus, in
France, one would always understand that Piotr Illich Tchaïkovski
is Russian or of Russian origin, whatever the method used to
transcribe his name.
In
the instant case, however, the disputed measure goes beyond a mere
transliteration or grammatical adaptation (Dmitriy Vladimirovich
to Dmytro Volodymyrovych). In this respect, the Court
notes that, in Ukraine, the internal passport (which is the standard
identity document) contains two main pages; one is drawn up into
Ukrainian, the other in Russian. On these two pages, the holder’s
given name and surname are entered, respectively, in accordance with
the spelling system of both languages. In addition, forenames and
surnames in Ukrainian, Russian and Belarusian – three languages
which belong to the Eastern Slavic language group – are not
only transliterated in Ukrainian, but are always entered in both
their historical and etymological versions (such as, for example,
Jean – John – Giovanni – João –
Ivan, etc.). Thus, there exists a whole series of doublets, in
which the Ukrainian element may sometimes differ significantly from
the Russian element, for example Dmitriy/Dmytro, Pavel/Pavlo,
Nikolay/Mykola, Afanasiy/Opanas,
Darya/Odarka, Yefim/Yukhym, Anna/Hanna and
Aleksey/Oleksiy. In the context of the Eastern Slavic
group, this system applies without distinction to all given names,
whatever their precise origin. Thus, the given name Afanasiy,
held by a citizen of Russian origin, will become Opanas on the
Ukrainian page of his internal passport; and an “ethnic”
Ukrainian named Opanas would have his forename written as
Afanasiy on the Russian page. However, it is usually the
Ukrainian or “Ukrainianised” version which becomes the
main version, and this is the version which is used in the majority
of other official documents, drawn up in Ukrainian only. The Court
also bears in mind that, despite the fact that both Russian and
Ukrainian are used in the internal Ukrainian passport, the two
languages have a different status: Ukrainian is the only official
language of the country; Russian is one of languages of the national
minorities (paragraph 25 above).
The
Court observes that this system is unique in Europe. However, it
reiterates that the distinctive nature of a Member State’s
legislation does not necessarily imply a violation of the Convention
(paragraph 43 (d) above). Indeed, the Court finds no evidence in the
case file to conclude that the system of “Ukrainianisation”,
as such, may be considered to be incompatible with the requirements
of Article 8, given that a person belonging to a national minority is
entitled to use his or her original name and to revert to that name
if it has been changed (paragraph 26 above). These provisions appear
to be in line with the relevant international instruments (paragraph
35 above). Therefore, the issue before the Court is whether Ukrainian
domestic practice as applied in the applicant’s case was
compatible with Article 8, as interpreted by the Court’s
case-law.
In
the Court’s opinion, there are two situations to be
distinguished regarding the name recognised in official documents.
The first is when the name is entered in an official document for the
first time, such as a birth certificate or the first passport, when
the Ukrainian language is imposed. The second situation is when the
person concerned has used a “Ukrainianised” name for some
time and, for whatever reason, wishes to revert to his or her
original name.
In
the instant case, the Court is faced with the second situation. The
facts of the case demonstrate that the applicant did not initially
disagree with the practice of “Ukrainianising” his
Russian given names when he received his internal passport. He only
made a formal objection two years later. Assuming that the practice
of “Ukrainianisation” could reasonably be considered by
the applicant to have been a forced change of his original name, and
that he only realised this belatedly, the principle issue would not
be the practice itself, but the possibility for the applicant to
revert to his original name under the domestic law.
In
this respect, it should be observed that the name is not only an
important element of self-identification; it is a crucial means of
personal identification in society at large. The applicant submitted
a number of documents (a tax payer’s certificate, university
diploma, social security card, etc.), which were issued in the
Ukrainian language only and in which his first name appeared in the
form to be found in his internal passport – the “Ukrainianised”
Dmytro. Therefore, in the Court’s view, issuing a new
internal passport, especially after a considerable lapse of time,
without certain formalities being observed might dissociate that
person from his or her other important official personal documents
and records. To maintain the link between the “old” and
“new” forms of a person’s name, it would be
reasonable to require the individual to follow a specific procedure
for effecting the change.
The
Government maintained that the applicant could apply for a change of
name under the procedure designed specifically for that purpose
(paragraphs 30-34 above). The applicant, in his turn, maintained that
he did not want to change his name, but to restore it to its original
form. He argued, therefore, that the existing procedure was
not appropriate in his situation. He further complained that the
State did not provide a separate procedure for restoring an original
name.
The
Court recalls that, in its decision on admissibility of 22 March
2005, it was unable fully to comprehend the Government’s
submissions concerning the procedure to change a name. However, in
the meantime it has further studied the question, and will now come
back to it. The Court notes that this procedure concerns not only the
replacement of one name by another, but also any, even minor, changes
in the spelling of that name. Moreover, reverting to or, as the
applicant puts it, “restoring” a name does not involve
anything more than just changing it back to its original form. This
procedure does not appear to be particularly complicated, thus
placing an excessive burden on the applicant. The restrictions on a
change of name under the relevant regulation appear to be justifiable
under Article 8 § 2 (paragraph 32 above). Moreover, the Court
cannot speculate whether these restrictions would apply to the
applicant, since he has never used this procedure.
In
view of the above considerations, the Court concludes that the
refusal of the domestic courts to order the issue of new passports
reflecting a particular form and spelling of the applicant’s
name, when he can seek its change under the specific procedure
examined above, cannot be deemed to have been unreasonable or
arbitrary. Accordingly, it finds no violation of Article 8 of the
Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant considered that he had been the victim of discrimination
prohibited by Article 14 of the Convention in exercising his
rights under 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 ... language, ... national ... origin, association
with a national minority, ... or other status.”
The
Government denied that there had been any discrimination, as the
practice criticised by the applicant was applicable to all Ukrainian
citizens without distinction. However, the applicant stressed that
only the given names and patronymics of Russian origin were subject
to “Ukrainianisation”; there had thus been clear
discrimination within the meaning of Article 14 of the Convention.
The
Court recalls that Article 14 affords protection against
discrimination in the enjoyment of the rights and freedoms
safeguarded by the other substantive provisions of the Convention.
For the purposes of Article 14 of the Convention, a difference in
treatment is discriminatory if it has no objective or 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 (cf. Stjerna v. Finland
judgment, loc. cit., p. 63, § 48).
The
Court notes that the applicant challenges the “Ukrainianisation”
of names in general. However, it appears from the relevant
information that there is a difference in conversion regarding
certain forenames, but which is unrelated to the ethnic origin of its
bearer (paragraph 47 above). Recalling the
margin of appreciation afforded to Contracting States in this field,
the Court accepts that a Contracting State may establish an automatic
rule, in accordance with the longstanding and generally accepted
tradition of using two different forms of the same name in Russian
and Ukrainian, which rule applies in the absence of any clearly
expressed wish of the person concerned to the contrary (mutatis
mutandis, Bijveld v. the Netherlands (dec.), no. 42973/98,
27 April 2000). Moreover, in the circumstances of the present case,
it has not been shown that the applicant could not obtain a departure
from that rule if he were to follow the procedure for a change of
name.
The
Court concludes therefore that the applicant has not suffered
discrimination in breach of Article 14 of the Convention.
Accordingly, there has been no violation of this provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of
Article 8 of the Convention;
Holds that there has been no violation of
Article 14 of the Convention.
Done in English, and notified in writing on 11 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint concurring opinion of Mr
Barreto, Mrs Mularoni and Mrs Jociene is annexed to this
judgment.
J.-P.C.
S.D.
JOINT CONCURRING OPINION OF JUDGES CABRAL BARRETO,
MULARONI AND JOCIENE
We
voted with the majority for a non-violation of Articles 8 and 14 of
the Convention.
However,
we consider that the case should have been rejected as being
inadmissible under Article 35 §§ 1 and 4 of the Convention,
the applicant not having exhausted domestic remedies.