EHRM, 06-05-2008, nr. 31745/02

The applicant, Mr Colin Christoph Heidecker, is a German national who was born in 1986 in Edinburgh and lives in Hamburg. In his everyday life the applicant uses the compound name Heidecker-Tiemann. The application was originally filed by his parents, Mrs Gisela Heidecker and Mr Axel Tiemann. Having reached legal age, the applicant informed the Court in March 2004 that he wished to pursue the application himself. He is represented by his father, Mr A. Tiemann.

The German Government (‘the Government’) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The applicant complained under Article 8 of the Convention about the refusal of the German authorities and courts to register his compound name ‘Heidecker-Tiemann’ because of Article 1617 § 1 of the Civil Code. He further complained under Article 6 § 1 of the Convention that the length of the proceedings regarding his case was excessive.

The applicant complained under Article 8 of the Convention about Article 1617 § 1 of the Civil Code and the domestic court decisions confirming the constitutionality of that provision. Article 8 of the Convention provides:

The Government maintained that the legislator's stipulation pursuant to Article 1617 § 1 of the Civil Code that parents may not give their children compound surnames composed of their respective surnames did not constitute an interference with Article 8, since that provision does not establish any right for parents to pass on their birth names to their children as a compound name. The same applied to the right of the child to bear such a name. There was no common human rights standard in the Contracting States either specifically in respect of a child's family name or generally within the field of law governing names. The law in Europe governing children's names was extremely varied in nature, and was influenced by objectives, social developments and traditions which differed widely. As different States had extremely diverse systems of regulation, they enjoyed a wide margin of appreciation in this respect. The different models range from simply adopting the name of the father as the child's surname (Turkey) to the possibility of the person with parental responsibility freely designating the name (Denmark and Norway). The Government submitted an expert opinion by the President of the German Section of the International Commission on Civil Status entitled ‘On the law relating to the naming of children in Europe’ in this connection. Under German law, compound names were permitted only in very specific exceptional circumstances. Nothing could be derived from these exceptional circumstances that would apply to the ‘normal’ case of a family with children. Given the situation as a whole, a fair balance was established under the German law governing family names between individuals' interests and those of the general public.

The Government further submitted that the compound name ‘Heidecker-Tiemann’, under which the applicant was registered in the Registry Office in Edinburgh after his birth, was not possible from the outset under German law. However, the designation of the surname was subject to German law from the applicant's birth because of his German nationality. The applicant's compound name was hence not ‘taken away’ by the German authorities. Moreover, the applicant did not suffer any disadvantage in his everyday life. Until now, he had been able to use his compound name — although incorrect in terms of the civil status law — within his social sphere, and will be able to continue to do so. He would also later be able to have the compound name entered in his passport and identity card as a pseudonym or professional name, as well as to use it vis-à-vis the registration authorities.

The applicant submitted that Article 1617 § 1 of the Civil Code and the domestic court decisions confirming the constitutionality of that provision deprived him of the possibility to obtain a compound name, which was not ‘necessary in a democratic society’ within the meaning of Article 8 § 2of the Convention. This was particularly the case since the Federal Constitutional Court, in its leading judgment of 30 January 2002, found that the legality of the passing on of a compound name to one's children was not unconstitutional. The German courts, when considering the proportionality of the interference, failed to take into account that persons with compound names were free to abandon them upon marriage. If they did not get married or have children, there was no danger of ‘name chains’ for future generations. When read in detail, the report submitted by the Government entitled ‘On the law relating to the naming of children in Europe’ revealed that the German approach was a minority model, whereas recent developments in Luxembourg or France showed a move towards greater recognition of compound names. The applicable law had been a political compromise which took into account various diverging convictions. The margin of appreciation in regulating the law of names which the Court accorded to the Contracting Parties should not be misinterpreted as being unlimited or unfettered. The applicable law had therefore failed to establish a fair balance between the different interests at issue. A compound name served best the purpose of identifying the applicant.

The applicant also argued that he had acquired a compound name in accordance with Scottish law upon his birth in Edinburgh, which he could not officially maintain in Germany due to a law which had been held unconstitutional by the Federal Constitutional Court in 1991. This put him in a different position than children who acquired their definite surnames at birth. Referring to the opinion of the Advocate General dated 30 June 2005 in the ‘Standesamt Stadt Niebüll’ case before the European Court of Justice (see ‘Relevant practice of the European Court of Justice’ above) the applicant submitted that the rule of a Member State which did not allow a citizen of the European Union whose name had been lawfully registered in another EU State to have that name recognised under its own laws was incompatible with the freedom of movement and residence in the territory of the Member States under Article 18 § 1 EC Treaty.

The Court notes that Article 8 of the Convention does not contain any explicit provisions on names (see G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97). As a means of personal identification and of linking to a family, a person's name nonetheless concerns his or her private and family life (see Ünal Tekeli v. Turkey, no. 29865/96, § 35, ECHR 2004-X (extracts) and, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, § 29). The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings (see Burghartz v. Switzerland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 24).

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 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 v. Finland, judgment of 25 November 1994, Series A no. 299-B, pp. 60–61, § 38; Johansson v. Finland, no. 10163/02, § 29, ECHR 2007-…). 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, among other authorities, 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 German authorities struck a fair balance between the competing public and private interests involved when refusing registration of the compound name. The Court's task is not to substitute itself for the competent German authorities or legislator in determining the most appropriate policy for the attribution of family names to children in Germany, but rather to review under the Convention the grounds adduced in respect of the decisions taken in the present case (see, mutatis mutandis, Stjerna, cited above, p. 61, § 39).

The margin of appreciation which the State authorities enjoy in the sphere under consideration is wide (see, inter alia, Stjerna, cited above, ibid. and Johansson, cited above, § 31), having particular regard to the fact that, as demonstrated by the expert opinion by the President of the German Section of the International Commission on Civil Status submitted by the Government, there appears to be little common ground amongst Convention States in this area.

Having regard to the above considerations, the Court will examine whether the respondent State's refusal to register the chosen name in the instant case raises an issue of failure to respect the applicant's private and family life. In weighing up the different interests at stake, consideration should be given, on the one hand, to the applicant's interest to be allowed officially to use both parents' surnames 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 (see Stjerna, cited above, p. 61, § 39). It may also be justified in the public interest to restrict the attribution of compound surnames. As the Commission found in the case of Fornaciarini, Gianettoni and Fornaciarini v. Switzerland (no. 22940/93, Commission decision of 12 April 1996), the refusal to register a compound name composed of both parents' surnames for a child born out of wedlock did not constitute a lack of respect for the applicant's private life within the meaning of Article 8, having particular regard to the fact that the applicant had not established that he suffered any inconveniences by being prevented from bearing both parents' names.

Turning to the reasons adduced by the German authorities for refusing registration of compound surnames, the Court notes the leading judgment of 30 January 2002 of the Federal Constitutional Court which held that the applicable law on compound names was constitutional, in particular because the general possibility to obtain compound names would lead to growing ‘chains of surnames’ which would not only be impracticable, but also to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification. The situation in which one fundamental right restricts another would consequently require a balancing of interests, and the option which the legislator chose had neither been required nor prohibited by the German constitution. In the light of the wide margin of appreciation left to the domestic authorities in such matters, the Court finds that the German legislator's general decision in this connection had neither been incomprehensible nor unreasonable.

In the Court's view, the legislator's general decision to restrict the passing on of compound names to children in order to avoid disadvantages for future generations is not contradicted by the fact that the use of the applicant's compound name in everyday life did not create any practical problems. As far as the applicant referred to the judgment of the European Court of Justice in the case of Standesamt Stadt Niebüll v. Stefan Grunkin, Dorothee Regina Paul (C-96/04), the Court finds that the matter at issue in that case is not comparable with the present case. The case before the European Court of Justice, which in any event decided that it did not have jurisdiction, and the case still pending before that court, both concerned the compatibility of section 10(1) of the Law Introducing the Civil Code with provisions of the EC Treaty, whereas the present issue concerns a different provision in the German Civil Code.

Having regard to the specific circumstances of the case, the Court notes that the applicant had been able to use his compound name within his social sphere and would continue to do so. It further observes that the use of the unregistered compound name in everyday life does not appear to create any serious practical problems or inconveniences to the applicant. In view of these circumstances the Court finds that the refusal by the German authorities to register the compound surname did not constitute a lack of respect for the applicants' private and family life under Article 8 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

The applicant further complained under Article 6 § 1 of the Convention that the length of the proceedings regarding his case was excessive. The relevant part of Article 6 § 1 of the Convention provides:

The Government contested that argument. They submitted that there had been two sets of proceedings. The first ended with the decision of the Federal Constitutional Court of 19 June 2000. Those proceedings had not been excessively long, though the applicant had caused unnecessary delays by addressing the Registrar of births, deaths and marriages in Neubrandenburg, which had no jurisdiction. The responsibility for addressing the authority with jurisdiction had lain in principle with the applicant, in particular because he had been represented by his father, who is a lawyer. The second set of proceedings had not been excessively long.

In the applicant's view, the period at issue lasted from the date of his parents' application to the Neubrandenburg Registry Office on 10 May 1994 until the decision of the Federal Constitutional Court of 21 February 2002, totalling seven years and nine months.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

In the present case, the Court finds that there had been two sets of proceedings which, despite the fact that they were both connected to the applicant's parents' declaration of May 1994, had different file numbers and were brought against different decisions by the Berlin Registry Office (namely, decisions taken in 1997 and 2000 respectively). The first set of proceedings ended with the decision of the Federal Constitutional Court of 19 June 2000. Since the application was lodged on 14 August 2002, the complaint under Article 6 was introduced outside the six-month time-limit laid down in Article 35 § 1 of the Convention. It is not open to the Court to set aside the application of the six-month rule (Belaousof and Others v. Greece, no. 66296/01, § 38, 27 May 2004).

The second set of proceedings commenced in February 2000 with the introduction of the applicant's motion against the refusal of the Berlin Registry Office of 11 February 2000 to register the applicant with a compound name. It ended with the decision by the Federal Constitutional Court of 21 February 2002. The total period of two years which involved three levels of jurisdiction as well as a constitutional complaint cannot be regarded as excessive.

The Court therefore finds that the complaint as regards the length of the proceedings in so far as it is within its jurisdiction is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

Declares the application inadmissible.

Claudia Westerdiek

Registrar

Peer Lorenzen

President