European Court of Human Rights

Information Note on the Court’s case-law No. 169

December 2013

Henry Kismoun v. France - 32265/10

Judgment 5.12.2013 [Section V] See: [2013] ECHR 1236

Article 8

Positive obligations

Article 8-1

Respect for family life

Respect for private life

Refusal to permit change of name requested with a view to unifying family surname: violation

 

Facts - The applicant was listed in the civil status register under his mother’s surname, Henry. He has dual nationality, Algerian through his father and French through his mother; both of his parents are now deceased. He was abandoned by his mother at the age of three, together with his brother and sister. The father took them in, and in 1961 moved them to Algeria. The applicant was always called Kismoun by his father, family and friends. It was under this surname that he was educated in Algeria from 1963 to 1970 and that he carried out his military service there from 1975 to 1977. It is also under this name that he is currently listed in the Algerian civil status register. In 1977 the applicant attempted to re-establish contact with his mother through the French Consulate in Algiers, which informed him that she did not wish to make contact. He also learned on that occasion that he was registered in France as Christian Henry, and not Cherif Kismoun, as in Algeria. The applicant sought to rectify that situation, but his appeals were unsuccessful, including one to the Minister of Justice, who dismissed his request by a decision of December 2003.

Law - Article 8

(a)  Applicability - The issue of the choice or change of the surnames and forenames of natural persons fell within the scope of this provision, given that the surname and forename concerned the individual’s private and family life.

(b)  Merits - The Minister of Justice’s decision amounted to a refusal to change a surname which was perfectly consistent with the applicant’s identification under French law, and to replace it with a very different surname. It followed that this case concerned the issue of the State’s positive obligations.

The Minister of Justice had partly based his decision in respect of the applicant’s request to change the surname “Henry” on a lack of evidence concerning the mother’s absence of interest. However, no examination had been conducted into the applicant’s specific reasons for wishing to use the surname “Kismoun”. The applicant had merely been informed that his possible use of that surname, which, he submitted, reflected his origins, was insufficient to denote the requisite legal interest. The national courts had subsequently never explained how the applicant’s request, which contained personal and individual reasons capable of being taken into consideration in examining the merits of an affective argument, conflicted with a public order necessity.

The reasoning put forward by the Minister of Justice in relation to the surname Henry did not constitute an adequate response to the applicant’s request, in that it attached no weight to the fact that he was seeking to be known under a single surname. In reality, the applicant was asking the national authorities to recognise the identity he had developed in Algeria, of which the surname Kismoun was one of the key elements. He wished to be registered under only one surname, namely that which he had used since childhood, in order to put an end to the inconvenience caused by his registration under two different identities in the French and Algerian civil status registers. The surname, as the principle means of identifying an individual within society, was part of the core considerations relevant to the right to respect for private and family life. The Court also emphasised, as the Court of Justice of the European Union had done, the importance for an individual of having a single surname. However, it was to be noted that it appeared from the reasoning in the decisions by which the national authorities had rejected the applicant’s request that they had not taken into account the identity-related aspect of his request, and, in so doing, had failed to balance the public interest at stake against the applicant’s overriding interest. In those circumstances, the decision-making process concerning the change in surname had not afforded the protection of the applicant’s interests safeguarded by Article 8 of the Convention.

Conclusion: violation (unanimous).

Article 46: The national authorities had not given appropriate weight to the applicant’s interest in having a single name. The Court consider that it was not required to indicate to the respondent State the measures to be taken, given that various methods could be envisaged to remedy the violation of Article 8 of the Convention.

Article 41: EUR 4,000 in respect of non-pecuniary damage.

 

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