In the case of Garnaga v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Helena Jäderblom,
Aleš Pejchal, judges,
Myroslava Antonovych, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 9 April 2013,Delivers the following
judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
20390/07) 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, Ms Nataliya Volodymyrivna Garnaga (“the
applicant”), on 2 April 2007.
The applicant was represented by Mr I.Y. Garnaga,
a lawyer practising in Bila Tserkva. The Ukrainian Government (“the
Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from
the Ministry of Justice.
The applicant alleged that the domestic
authorities had interfered with her private life by refusing her request to change
her patronymic (a patronymic can be defined as a second given name derived from
the father’s forename with the appropriate gender suffix).
On 6 February 2012 the application was
communicated to the Government.
Ms G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the
Chamber decided to appoint Ms M. Antonovych to sit as an ad hoc judge
(Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1968 and lives in the
town of Bila Tserkva, Ukraine.
According to the applicant, for many years she had
been living as part of a family with her stepfather, mother and half-brother
and wanted to associate herself more closely with them by taking the surname of
her stepfather and also a patronymic derived from his forename.
On 24 March 2004 the applicant lodged a request
with the Civil Status Registration Office in Bila Tserkva (hereinafter “the
Registration Office”) seeking to change her patronymic from Volodymyrivna (Володимирівна)
to Yuriyivna (Юріївна).
By a letter of 27 March 2004 the Registration
Office refused the applicant’s request, referring to the Rules on Civil Status Registration
in Ukraine, approved by the Ministry of Justice, which provided that the
patronymic of a physical person could only be changed in the event of a change
of forename by his or her father.
On 23 April 2004 the applicant challenged this
refusal in the Bila Tserkva Local Court. She complained that her patronymic, along
with her forename and family name, was part of her full name and she had the
right to change it. She maintained that the refusal violated her constitutional
rights, was unconstitutional and was not based on law. She further contended
that she had good reasons for changing her patronymic - to disassociate herself
from her biological father and associate herself more closely with her
stepfather and half-brother.
On 5 May 2004 the applicant changed her original
surname from Glazkova to the surname of her stepfather, Garnaga, which was also
the surname of her mother and half-brother.
On 10 June 2004 the Bila Tserkva Local Court
found that the Registration Office had acted in accordance with the law, in
compliance with Article 149 of the Family Code of 2002, and so dismissed the
applicant’s complaint. It found that a change of patronymic was only legally possible
when the father of the person concerned had previously changed his forename. Therefore,
given that the applicant’s father had not changed his forename, the applicant’s
request for change of her patronymic had not been in compliance with the law.
The court also noted that the Rules on Civil Status Registration provided more
detailed regulation of the relevant provisions of the Constitution, the Civil
Code and the Family Code and did not conflict with them.
On 3 December 2004 the Kyiv Regional Court of
Appeal upheld the decision of the first-instance court, holding that its
conclusions were based on law.
On 31 October 2006 the Higher Administrative
Court dismissed an appeal lodged by the applicant on points of law. It held,
in particular, that the argument put forward by the applicant that the new
Family Code limited the right to change a patronymic was based on an incorrect
interpretation of the provisions of Article 191 of the Family Code of 1969.
II. RELEVANT DOMESTIC LAW
A. Constitution
The relevant provision of the Constitution reads
as follows:
Article 22
“... The content and scope of existing rights and freedoms
shall not be diminished as a result of the enactment of new laws or in the
amendment of laws that are in force.”
B. The Family Code 1969 (no longer in force)
The relevant provisions of the Code read as
follows:
Article 191
Place and procedure for registration of a change of surname,
forename or patronymic
“Registration of a change of surname, forename or patronymic of
a citizen of Ukraine shall be conducted by civil status registration offices at
his or her place of residence.
Registration of a change of surname, forename or patronymic shall
be notified to those civil status registration offices in Ukraine which keep the records of births, marriages and divorces of those who have changed their surname,
forename, or patronymic.”
C. The Civil Code 2003 (in force since 1 January 2004)
The relevant provisions of the Code read as
follows:
Article 28
An individual’s name
“1. An individual
acquires rights and responsibilities and exercises them under his or her own
name.
The name of an individual who is
a citizen of Ukraine consists of his or her surname, forename and patronymic,
unless the law or custom of the national minority to which they belong provides
otherwise ...”
Article 294
Right to a name
“1. An individual has the right to a name ...”
Article 295
The right to change a name
“1. An individual who has reached the age of sixteen
has the right to change his or her surname and forename in accordance with the
procedure prescribed by law.
...
3. An individual’s patronymic can be changed if his
or her father changes his forename ...”
D. The Family Code 2002 (in force since 1 January
2004)
The relevant provisions of the Code read as
follows:
Article 10
Use of analogy of statute (аналогія
закону) and analogy of law (аналогія
права)
1. Where family relations are not regulated by this
Code or by agreement (contract) between the parties, the rules of this Code
governing similar relations shall apply to them (analogy of statute).
2. Where the analogy of statute cannot apply to the
regulation of family relations, these are governed by the general principles of
family law (analogy of law).
Article 147
Determining the patronymic of a child
1. The patronymic of a child shall be determined by
the forename of her or his father.
2. The patronymic of a child who was born to an
unmarried woman, where the paternity of the child is not recognised, shall be
determined by the forename of the person who the child’s mother called his or
her father.
Article 149
Change of patronymic
“1. If a father changes his name, the patronymic of his
child who has reached the age of fourteen years shall be changed with the
latter’s consent.”
. In her
commentary on the Family Code (Ромовська
З. В. Сімейний
кодекс
України: Науково-практичний
коментар. - 2-ге
вид., перероб. і
доп. - К.:
Видавничій
Дім Ін Юре, 2006.
Стор. 310, 312), Professor Z. V. Romovska, a
drafter of the Code, noted, in particular, in respect of Articles 147 and 149:
Article 147
“1. ... The forename of the person recorded as the
child’s father automatically defines the patronymic of the child ...
3. Every child, must, in all circumstances, have a
"patronymic" even when the identity of his or her real father is not established.
In that case, the "patronymic" can be invented.”
Article 149
“2. A child who has attained the age of fourteen,
already has his or her place in society, is preparing for independent life and
associates his or her name with the patronymic which appears in his or her documents.
Therefore, his or her consent or objection to the change of patronymic will be
crucial. A situation may thus arise in which the father has changed his forename,
while the patronymic in the documents of his son or daughter remains [the old
one].
3. Can the patronymic be changed when the forename
of the father has not been changed? There is no response to this question in
Article 149. However, Article 10 of the F[amily] C[ode] allows the analogy of
statute and law and can help in finding a solution in such a situation.”
E. Presidential Decree no. 23 of 31 December 1991 on the
procedure for changing surnames, forenames and patronymics by citizens of
Ukraine (invalidated by Presidential Decree no. 803/2007 of 31 August
2007)
The Decree provided inter alia:
“1. Citizens of Ukraine are allowed to change their
surname, forename and patronymic when they attain the age of sixteen.
2. ... A refusal to change a surname, forename or patronymic
can be challenged before the court in accordance with the established
procedure.”
F. Resolution of the Cabinet of Ministers no. 233 of
27 March 1993 on approval of the procedure for the examination of requests by the
citizens of Ukraine for a change of surname, forename or patronymic (invalidated
by Resolution of the Cabinet of Ministers no. 915 of 11 July 2007)
As with the Presidential Decree, the procedure
approved by this Resolution provided that any citizen who had reached the age
of sixteen could apply for a change of surname, forename and patronymic and
that a refusal of such a change could be appealed against to the courts. The
procedure further provided that:
“15. change of surname, forename or patronymic shall
not be allowed if
a) the applicant is under investigation or trial or has been
convicted;
b) there are objections from the police.”
G. Resolution no. 915 of 11 July 2007 of the Cabinet
of Ministers on the procedure for examination of applications for change of
name (surname, forename, patronymic) of an individual
This Resolution replaced the Government’s Resolution
of 27 March 1993. It set forth a procedure for changing all parts of the
individual’s name (surname, forename, patronymic). Only one provision refers
exclusively to patronymics:
“3. ...The application of an individual for a
repeated change of patronymic shall be lodged and examined in accordance with
this procedure.”
The procedure further provides for the
circumstances in which an application for change of name can be refused:
“11. The grounds for refusal to allow the change of
name are:
(i) the applicant is under
investigation, trial or administrative supervision;
(ii) the applicant has a criminal
record which has not been cancelled or overturned in accordance with the
procedure established by law;
(iii) there is an
official request from the law-enforcement agencies of foreign countries for the
applicant’s placement on a list of wanted persons;
(iv) the applicant submits false information.
Refusal to allow the change of name can be
appealed against to the court.”
H. Rules on Civil Status Registration in Ukraine,
approved by Decree of the Ministry of Justice of Ukraine of 18 October 2000 no. 52/5 (as worded at the material time).
The relevant provisions of the Rules, in the
wording at the material time, read as follows:
“6. Registration of change of name
6.1. ... The name of an individual who is a citizen
of Ukraine consists of a surname, forename and patronymic, unless the law or
custom of the national minority to which he or she belongs provides otherwise.
6.2. A change of surname and forename by individuals
who are citizens of Ukraine shall be allowed once they have reached the age of
sixteen.
...
The patronymic of an individual can be changed in the event of
a change of forename by his or her father.
If the father changes his forename, the patronymic of his child
who has reached the age of fourteen years may be changed with the latter’s
consent.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the domestic
authorities had interfered in her private life by refusing to change her
patronymic. She relied on Article 8 of the Convention, which
provides, in so far 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 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.”
A. Admissibility
The Government maintained that the domestic
legislation contained clear provisions which did not allow a change of
patronymic at one’s own discretion and that the national courts could not render
a decision contrary to the law. Therefore, in their opinion, it was not an
effective remedy for the applicant to challenge the refusal of 27 March 2004
before the domestic courts and she had no other effective remedy in such circumstances.
The Government observed that the six-month time-limit ran, in principle, from
the date of the act complained of, if no remedies were available or if they
were judged to be ineffective. Accordingly, the applicant should have applied
to the Court within six months after the Registration Office rejected her
request to change her patronymic on 27 March 2004.
The applicant disagreed. She considered that she
had had a right of access to the domestic courts with her civil - law dispute
and since such remedy had been available to her she had had to use it.
Furthermore, she maintained that the domestic legislation did not prohibit her change
of patronymic and that the decisions of the domestic courts were not based on
law.
The Court reiterates that the six-month
time-limit runs, in principle, from the date of the act complained of, if no
remedies are available or if they are judged to be ineffective (see Hazar
and Others v. Turkey (dec.), no. 62566/00, 10 January 2002).
The Court reiterates that for the remedy
to be effective it must be independent of any action taken at
the authorities’ discretion directly available to those concerned (see Gurepka
v. Ukraine, no. 61406/00, § 59, 6 September 2005); able to prevent the
alleged violation from taking place or continuing; or provide adequate redress
for any violation that had already occurred (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000-XI).
The Court observes that in a number of cases
against Ukraine it has found that the courts of general jurisdiction in Ukraine, including the Supreme Court, did not have power to overrule the law. Moreover, in the
Ukrainian legal system an individual has no right of individual petition to the
Constitutional Court of Ukraine, which is the only jurisdiction empowered to
repeal a statutory provision. Therefore, where the applicant’s complaint
directly concerned a statutory provision which was clear and unambiguous, the
Court would conclude that such applicant had no remedy which could be
considered effective in the circumstances of his or her case (see, for example,
Myroshnychenko v. Ukraine (dec.), no. 10205/04, 3 April 2007).
The Court notes that, in the instant case, the
applicant did have direct access to the domestic courts with her civil - law
dispute. Moreover, such an opportunity had been clearly provided by the
domestic legislation for this type of dispute (see paragraphs 20 and 21 above).
It remains to be examined whether, as the Government have suggested, national
legislation was so clear on the disputed issue that any attempts by the
applicant to challenge the refusal of the Registration Office before the
domestic courts would clearly be futile. In this connection, the Court notes
that at the time of the events which gave rise to the present application
Ukrainian legislation had been recently amended and the provisions of the new
Civil Code and Family Code had limited the possibility for changing the patronymic
to situations in which the father of the person concerned had changed his
forename from which that patronymic derived. In this connection, it should be
pointed out that the relevant decree and resolution of the President and the
Cabinet of Ministers respectively (see paragraphs 20 and 21 above) which
allowed such change without demanding change of the father’s forename as
precondition remained valid for another three years after the disputed refusal,
and even the provision of Article 149 of the Family Code was not considered to
impose such restriction. In this connection, the Court takes note of the
commentary published by a drafter of the new Family Code, who considered that
the said Article did not regulate situations such as that of the applicant and
believed that a solution could be found in such circumstances by using the analogy
of law or statute (see paragraph 19 above). These findings are sufficient
to satisfy the Court that at the material time the regulation of the impugned matter
in question, namely the possibility for an individual to change his or her
patronymic without a change of forename by his or her father, was not set out with
sufficient clarity to indicate to a person concerned that recourse to the
domestic courts against the refusal of an application to change patronymic
would be completely futile.
Therefore, the Court considers that the applicant
could not be reproached for using remedies which could arguably be deemed effective
in her situation. Given that the applicant lodged her application on 2 April
2007, that is, less than six months after the final judicial decision in her
case given by the Higher Administrative Court on 31 October 2006, the Court dismisses
this objection by the Government.
The Court further notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It is also not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
The applicant stated that for many years she had
lived as part of a family with her stepfather, mother and half-brother and wished
to associate herself more closely with them by taking the surname of her
stepfather and a patronymic derived from the stepfather’s forename. Although
she was allowed to change her family surname, the domestic authorities refused her
request for a change of patronymic - having interpreted new legislation as
prohibiting such a change. She disagreed with that interpretation, maintaining
that the change of patronymic at one’s own discretion had been allowed under
the relevant Presidential decree and the Governmental resolution (see
paragraphs 20 and 21 above). She considered that the restriction of her right
to change her patronymic was unlawful and unjustified.
The Government did not submit their observations
on the merits, considering the application inadmissible.
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 recalls that in many similar cases
concerning choice or change of forename or surname it established that this
issue fell within the ambit of Article 8 of the Convention, since the forename
and surname concerned the private and family life of an individual (see, among
many other authorities, Burghartz v. Switzerland, 22 February 1994, §
24, Series A no. 280-B; Stjerna v. Finland, 25 November 1994,
§ 37, Series A no. 299-B; and Guillot v. France, 24 October
1996, §§ 21 and 22, Reports of Judgments and Decisions 1996-V).
The case of Bulgakov v. Ukraine (no. 59894/00, § 42, 11 September
2007) also concerned the applicant’s patronymic as part of his name. The
subject matter of the application thus falls within the ambit of Article 8 of
the Convention.
The Court further reiterates that, while an
obligation to change one’s name would be regarded as interference in the
private life of the individual, the refusal to allow an individual to adopt a
new name cannot necessarily be considered as an interference. It reaffirms that
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, there may be, in
addition, positive obligations inherent in effective respect for private and
family life. If the boundaries between the State’s positive and negative
obligations under Article 8 do not lend themselves to precise definition, the
applicable principles are nonetheless similar. In both contexts regard must be
had to the fair balance which has to be struck between the competing interests
of the individual and of the society as a whole (see Stjerna, cited above,
§ 38; and Johansson v. Finland, no. 10163/02, § 29, 6 September 2007).
Whilst recognising that there may exist genuine
reasons prompting an individual to wish to change his or her name, the Court
accepts that legal restrictions on such a possibility may be justified in the
public interest; for example in order to ensure accurate population
registration or to safeguard the means of personal identification and of
linking the bearers of a given name to a family (see Stjerna, cited
above, § 39).
The Court further recalls that the Contracting
States enjoy a wide margin of appreciation in the sphere of regulation of
changing names by individuals, and its task is not to substitute itself for the
competent domestic authorities in determining the most appropriate policy in
that sphere, but rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of appreciation (see Stjerna,
cited above, § 39). It is for the domestic authority to provide relevant and
sufficient reasons in support of its refusal to allow the change of name by an
individual for this restriction be considered "necessary in a democratic
society" (see Güzel Erdagöz v. Turkey, no. 37483/02, §§ 50 to 55,
21 October 2008)
The patronymic as a part of a personal name is traditionally
derived from the name of the father of the person concerned. Ukrainian
legislation recognises, however, that when individuals become mature enough to
make their own decisions concerning their names they may keep or change the
name given to them at birth. It is particularly noteworthy, that a person may preserve
his or her patronymic, even when his or her father no longer holds the forename
from which that patronymic derives. In this way, a possible rupture of the
traditional link between the person’s patronymic and the forename of his or her
father is recognised. The new Civil Code enacted on 1 January 2004
provides that an individual can change the patronymic if his or her father has changed
his forename. The domestic authorities interpreted that provision as a clear
indication that the change of name by his or her father was the only ground
possible for changing the patronymic by the person concerned. The applicant
argued that the impugned provision did not prohibit a change of patronymic in
other situations and that the other normative acts (see paragraphs 20 and 21
above) did not contain similar limitations. In the applicant’s opinion, such
refusal had, in any event, been unjustified and was an unnecessary restriction to
her right to a name, as a part of her personal and family identity.
Thus, the Court notes that it is disputed
between the parties whether the restriction of the applicant’s right is based
on law or on an incorrect interpretation of the law. At the relevant time various
provisions (see paragraphs 17, 20, 21 and 24 above) were in existence, which
suggests that the issue of change of patronymic had not been formulated with
enough clarity. Even if there is a controversy about the right interpretation
of the law, it is undisputed that the right of the individual to keep his or
her name is recognised in Ukrainian legislation, as well as the right to change
it. It should be observed that the Ukrainian system of changing names appears
to be rather flexible and a person can change his or her name through following
a special procedure with only minor restrictions, which are applicable in very
specific circumstances, mainly related to criminal justice considerations (see
paragraph 22 above). At the same time, no broader considerations, like an
accurate population registration or linking the bearers of a given name to a
family, seem to be advanced by the authorities to pose restrictions on the
change of name by an individual. In this situation of almost complete liberty
of a person in changing his or her forename or surname, the restrictions on
changing the patronymic do not appear to be properly and sufficiently reasoned
by the domestic law. Furthermore, no justification for denying the applicant
her right to decide on this important aspect of her private and family life was
given by the domestic authorities and no such justification has otherwise been
established. As the authorities have not balanced the relevant interests at
stake (see paragraph 38 above) they have not fulfilled their positive
obligation of securing the applicant’s right to respect for her private life. Accordingly,
the Court considers that in the present case there has been a violation of
Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 5,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered this claim
unsubstantiated.
The Court considers that the finding of a
violation, constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant.
B. Costs and expenses
The applicant also claimed 103.17 Ukrainian
hryvnias (UAH) (around EUR 10) for the costs and expenses incurred before the
domestic courts and UAH 2,178.68 (around EUR 212) for those incurred before the
Court. She further requested the Court to adjust these amounts to reflect any
increase in the rate of inflation.
The Government considered that the claim for expenses
incurred before the domestic courts should be rejected as they did not concern
the proceedings before the Court. As to the expenses incurred before the Court,
the Government considered that only postal expenses in the amount of UAH 142.22
were proved to be related to the proceedings before the Court, while the
receipts for the remaining expenses claimed were not specific as to their
relevance to those proceedings. Therefore, the Government proposed that they
should be rejected as groundless.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and to the above-mentioned criteria, the Court awards
the claimed amounts in full. As to adjusting the award of costs in accordance
with the rate of inflation, the Court notes that the applicant did not submit any
relevant calculations or supporting documents, so it dismisses this request.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares the application admissible
unanimously;
2. Holds unanimously that there has been a
violation of Article 8 of the Convention;
3. Holds by four votes to three that the
finding of a violation constitutes in itself sufficient just satisfaction for
any non-pecuniary damage sustained by the applicant;
4. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44
§ 2 of the Convention, EUR 222 (two hundred and twenty-two euros), plus
any tax that may be chargeable to the applicant, in respect of costs and expenses,
to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
