S. proti Finsku



AS TO THE ADMISSIBILITY OF

Application No. 18131/91

by A.S.

against Finland

The European Commission of Human Rights sitting in private on

29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 March 1991 by

A.S. against Finland and registered on 25 April 1991 under file No.

18131/91;

Having regard to

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 February 1992 and the observations in reply submitted by the

applicant on 13 April 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish citizen born in 1936. He is a customs

inspector. Before the Commission he is represented by Mr. Markku

Fredman, a lawyer practising in Helsinki.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

In March 1989 the applicant requested the County Administrative

Board (lääninhallitus, länsstyrelsen) of the County of Uusimaa to grant

him permission to have his surname changed to "Tawaststjerna", a name

used by his ancestors. The applicant further referred to practical

inconveniencies in using his present name of old Swedish form, as it

is less known and, because of pronunciation difficulties, easily

misspelt, as (list of several mis-spellings).

By an advisory opinion of 19 April 1989 to the County

Administrative Board the Advisory Name Board (nimilautakunta, nämnden

för namnärenden) objected to the change, as it had not been shown that

the proposed name had been in established use by his ancestors. The

Board noted that the ancestor to whom the applicant referred had been

born out of wedlock. It further had regard to the fact that the name

had belonged to very distant ancestors of the applicant and that the

expression "ancestor" in the Surname Act (sukunimilaki 694/85,

släktnamnslagen 694/85) does not include all direct ancestors of an

applicant, without any limitations. The Board referred to Section 10

para. 2 of the Act.

During the subsequent exchange of views between the applicant and

the Name Board the applicant on 14 June 1989 stated that his present

name had given rise to a pejorative nickname, "kirnu" (Eng. churn)

derived from "Ts....". He contended that the distant relationship with

his ancestors could not be interpreted to his detriment. He further

contested that his ancestor had been born out of wedlock. He referred

to the result of a genealogical investigation submitted to the County

Administrative Board already as an annex to his request and questioned

on what grounds the Name Board had come to another conclusion.

The Name Board on 25 October 1989 contended that the proposed

name was inappropriate and that the request should not be granted. The

Name Board noted that the applicant had put forward a weighty reason

for his request, that is the obscure character of his present name.

However, although the applicant was a descendant of an ancestor named

T....... who died in 1773, the relationship between the applicant and

that ancestor was remote. Moreover, the proposed name could result in

inconveniences similar to those caused by the applicant's present name.

On 21 November 1989 the applicant - following an expert opinion

submitted to the Name Board by a member of that Board - alleged that

that opinion was partial. He further stated that his present name was

causing delays in his mail because of spelling difficulties. However,

he changed the proposed name to "T........" in order to comply with the

spelling form recommended by the member of the Name Board.

On 26 January 1990 the applicant made further submissions to the

County Administrative Board, arguing that he had complied with all

criteria set out by the Name Board. He further referred to a telephone

conversation with a member of the Name Board according to whom a

further criterion taken into account by the Board was the old-fashioned

character of the proposed name. This criterion, however, was not

stated in its opinions.

On 12 February 1990 the County Administrative Board, in

application of Section 10 para. 2 of the Surname Act, rejected the

applicant's request, finding that it had not been shown that the

proposed name had been in established use by his ancestors, as the

ancestor referred to had been born out of wedlock. On the other hand,

the Board found that the name had been used by very distant ancestors,

for which reason the proposed change could not be considered

appropriate.

Following the applicant's appeal the Supreme Administrative Court

(korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 14 November

1990 (by 4 votes to 1) upheld the County Administrative Board's

decision. The Court stated:

"From the documents in the case it is established that [the

applicant's] ancestor, Mr. F. S...., born in ... 1764, was

the child of Mr. M. F. T...... and born out of wedlock.

However, merely for this reason the proposed name cannot be

considered to have belonged to [the applicant's] ancestors

in such an established way as prescribed in Section 10

para. 2 of the Surname Act. Having regard to this as well

as to the reasons stated in the County Administrative

Board's decision .. there is no reason to change that

decision..."

The dissenting member stated, inter alia:

"From the documents in the case it is established that the

proposed name T..... has belonged in an established way to

the applicant's ancestors. The fact that ... F., ...

starting from whom the surname of the applicant's ancestors

... has been "S.....", was born out of wedlock, has no

legal relevance... (As) [the applicant] has established

that [his] present surname is causing [him] inconvenience

I quash the County Administrative Board's decision and

refer the case back for new examination."

Relevant domestic law

Under Section 10 of the Name Act (nimilaki, namnlagen; the title

of the act amended by Act no. 253/91) a surname may be changed, if the

applicant can show that the use of his present surname is causing him

inconvenience because of its foreign origin, its meaning in common

usage, its common appearance or for any other reason (para. 1); if the

proposed surname has previously been used by himself or, in an

established way, by his ancestors and provided the change may be

considered appropriate (para. 2); or if a change of surname can be

considered justified because of changed circumstances or for other

particular reasons (para. 3).

Section 12 para. 1 provides that a surname commonly known as

being used by a particular Finnish or foreign family cannot be approved

as a new surname, unless there are a special reasons.

Under Section 13 para. 2 such a reason exists if the requested

name is shown previously to have been lawfully used by the applicant

or his ancestors.

COMPLAINTS

1. The applicant complains that the refusal to grant him permission

to have his surname changed violates his right to respect for his

private life under Article 8 of the Convention. He submits that his

present name causes him great difficulties in his daily life, e.g.

because of the pejorative nickname and delays in his mail. The

applicant further refers to the position of the Advisory Name Board,

as made public by the Board itself, according to which the remote

relationship between the applicant and his ancestors is not the only

criterion to be considered, but that a request must be considered

taking the circumstances as a whole into account.

2. Although under Finnish law the applicant could take the name

"Tavaststjerna" if he would marry somebody with that name he is not

allowed to take that name back even though it has been used by his

ancestors. The fact that his ancestor was born out of wedlock has been

considered to his detriment in the consideration of his request,

although under Finnish law a child born out of wedlock may take the

name of its father. In this respect the applicant invokes Article 14

of the Convention.

THE LAW

1. The applicant complains that the refusal to allow him to have his

surname changed violates his right to respect for his private life

under Article 8 (Art. 8) of the Convention. He submits that his present

name is causing him inconveniences in his daily life.

Article 8 (Art. 8) of the Convention reads:

"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."

The Government submit that whilst the legislation on names and

the measures taken in accordance with that legislation are partially

linked with the private life referred to in Article 8 para. 1

(Art. 8 1) of the Convention, in the case at issue there has been no

interference with the applicant's right to respect for his private or

family life.

Should the Commission consider Article 8 (Art. 8) of the

Convention to be applicable in the present case the Government submit

that the interference with the applicant's right was justified for the

reasons set out in paragraph 2 of the provision. The refusal was based

on sufficient and precise provisions in the Name Act and, thus, lawful.

Moreover, it was made in the interests of national security, public

safety and for the prevention of disorder or crime and the protection

of the rights and freedoms of others.

In conclusion, having regard to the social control functions of

the legislation and the aims expressly stated in the travaux

preparatoires to the Name Act (Bill no. 236/84) the relevant provisions

are fair and reasonable and have been appropriately and consistently

applied.

The Government finally refer to the fact that many Contracting

States have restrictions on the right to name changes similar to those

applying in Finland.

The applicant contends that Article 8 (Art. 8) is applicable in

his case. He has shown that his present name is causing him

inconveniences. In the circumstances of the case the refusal violates

his rights under that provision.

He further submits that, although accepting that the Name Act

does not provide an absolute right to a name change, he is not trying

to take just any name but a name proven to have been used by a direct

ancestor. Although the Supreme Administrative Court found that the

applicant's ancestor born in 1764 was the son of a Tavaststjerna that

name was not considered to have belonged to the applicant's ancestors

in an established way. However, it is clear from the documents that

also the father of that Tavaststjerna carried that name. The prefix

"Tavast" is well-known to Finns without knowledge of Swedish and

appears in certain Swedish names still used in Finland.

As regards the purposes under Article 8 para. 2 (Art. 8-2) of the

Convention allegedly justifying the refusal, the applicant submits that

it has not even been argued by the Government that he requested the

name change in order to disguise himself. The control function of the

legislation on names has been excessively emphasised. The only relevant

justification for restricting name changes would be the protection of

the rights of others. However, in the present case the proposed name

change would in no way infringe on the rights of others. Moreover, the

wide-spread use of personal identity numbers decreases the State's

interest in restricting the right to name changes. Criminal records and

other social control measures are based on the personal identity

number.

The applicant finally notes that the Government admit that the

Name Act was not applied correctly in that the authorities did not

consider the request under Section 10 para. 1 of the Act.

The Commission has proceeded to a preliminary examination of the

complaint in the light of the parties' submissions. It considers that

it raises questions of fact and law which are of such a complex nature

that their determination requires an examination of the merits. The

complaint cannot therefore be declared inadmissible as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

2. The applicant further alleges that the refusal is discriminatory

and, thus, in violation of Article 14 (Art. 14) of the Convention.

Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this

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 Commission has found above that the complaint under Article

8 (Art. 8) of the Convention is admissible. As the complaint under

Article 14 (Art. 14) of the Convention is linked to that complaint, it

must also be declared admissible.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)