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501
STJERNA v FINLAND
ECtHR: European Court of Human Rights
Ser A No 299-B
25 November 1994
Finland
FAMILY AND PRIVATE LIFE - Refusal to allow change of surname justified - ECHR Art 8
PROCEDURE - Circumstance not raised before ECmHR would not be considered - ECHR Art 47
Stjerna (S) applied for permission to change his surname to one of which his existing name was a part and which had last been used by ancestors who had died over two hundred years ago. He maintained that he and other members of his family had always felt it an injustice only to bear part of the original name and that the present name gave rise to practical difficulties as it was an old Swedish form, not well known and difficult to pronounce. This meant that it was frequently misspelt and his mail was delayed. S also claimed that his name had given rise to a pejorative nickname. The advisory committee on names recommended that the application be rejected as S's ancestor was very far back and the suggested name would result in sources of inconvenience similar to the present name. The county administrative board considered that it had not been shown that the proposed name had been used by S's ancestors in such a way as to become `established' (one of the three circumstances in which a name change could be allowed) since the first one to bear his current name had been born out of wedlock in 1764. It held that, as the proposed name had been used by ancestors who were very far back, it would be inappropriate for S to change his name to theirs. On appeal the supreme administrative court observed that the proposed name could not be considered to have been the `established' surname of S's ancestors because his ancestor was born in 1764 and was the illegitimate son of someone bearing that name. It held that, in the light of this and the board's reasoning, that there was no ground for altering the latter's decision. A Finnish surname guide listed some 7,000 names that had fallen out of use and a further 2,000 based on common nouns and place names. S complained about the refusal to allow a change of surname and the Commission found no breach of Art 14 with Art 8 or (12-9) Art 8.
The Court held: (1) that it could not consider the argument that the name change was required to avoid a former colleague who had subjected him to threats and harassment as it had not been raised before the ECmHR and was unsubstantiated; (2) that, as a name constituted a means of personal identification and a link to family, it concerned an individual's private and family life; (3) that, unlike a requirement to change a surname, the refusal to allow the adoption of a new one could not necessarily be regarded as an interference with the right to respect for private life but might encroach upon the positive obligations inherent in it where the public interest did not outweigh genuine reasons for the proposed change; (4) that the alleged difficulties in the spelling and pronunciation of S's name could not have been very frequent or any more significant than that experienced by a large number of people now moving between countries in Europe and there was no reason to conclude that the new name would not give rise to similar practical difficulties; (5) that the pejorative nickname was not a specific feature of S's name as many names lend themselves to distortion; (6) that, as the ancestor bearing his chosen new name lived so far back, no significant weight could be given to those links and there were a multitude of possibilities if S had been willing to adopt a new name or identify one not already in use; (7) that the refusal to allow the change did not, therefore, violate Art 8; and (8) that, as there was nothing to suggest that a different decision would have been reached if S's ancestor had been a legitimate child who had for some other reason taken his current surname and as the reason given for the refusal appeared objective and reasonable, there was no violation of Art 14 with Art 8.
Comment: In holding that an individual's choice of name was a means of personal identification and, as such protected by Art 8, the Court was confirming the view it took in Burghartz v Switzerland, (1995) 9 Interights Bulletin 115. However, in that case the principal concern was not with whether a particular choice of name could be rejected because of its characteristics but with whether the rules permitting any change failed to treat spouses equally. Although S raised various considerations as to why his proposed new name would be preferable to his existing one, the Court did not consider that these were sufficiently compelling to override the wide margin of appreciation that should be allowed to States in this area. Such latitude seems to be accorded to them simply because there was a lack of common ground in the approach that States actually adopted, with some imposing no restrictions on choice at all. It may well be that the name which S wished to adopt (Tavaststjerna) was little different from his existing one and its attendant difficulties but there is no clear articulation in the judgment of an important public purpose being served by the refusal. At best it seems to fall within one of the three purposes specifically identified by the Court, namely linking the bearers of a given name to a family (the others were ensuring accurate population registration and safeguarding means of personal identification) but S did have a link, albeit remote, with the ancestors who had once used it and there did not appear to be other members of the family who would be threatened by his adoption of it. The reason for a change in name which S adduced only before the Court was understandably ruled inadmissible (cf the approach in Lopez Ostra v Spain, infra which concerned a continuing violation) but it is unlikely to have secured a more favourable outcome. S might have been able to establish a breach of Art 14 with Art 8 if the refusal had been based on the fact that his link with the ancestors stemmed from an illegitimate birth but the Court accepted that lack of use was the motivation. Judge Wildhaber in a concurring opinion provides some thoughtful observations on the supposed dichotomy between negative and positive obligations under Art 8 (the Court having placed the issue of names under the latter heading) and seems to question the assumption in the case law that the former perhaps have greater priority. This is important given that the sphere of private life is circumscribed by State intervention and may, therefore, require some compensating positive action for adequate protection to be achieved. However, he did not consider that this would have affected the outcome in this case.
10/1-1996
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