CASE OF BURGHARTZ v. SWITZERLAND
Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 14+8;Not necessary to examine Art. 8;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo;N. Valticos
6. The applicants, who are Swiss nationals, have both lived in Basle since 1975. They were married in Germany in 1984 and Mrs Burghartz has German citizenship also. In accordance with German law (Article 1355 of the Civil Code), they chose the wife’s surname, "Burghartz", as their family name; the husband availed himself of his right to put his own surname in front of that and thus call himself "Schnyder Burghartz". 7. The Swiss registry office (Zivilstandsamt) having recorded "Schnyder" as their joint surname, the couple applied to substitute "Burghartz" as the family surname and "Schnyder Burghartz" as the husband’s surname. On 6 November 1984 the cantonal government (Regierungsrat) of Basle Rural turned down the application. 8. On 26 October 1988 the applicants made a further application to the cantonal Department of Justice (Justizdepartement) of Basle Urban, following an amendment to the Civil Code as regards the effects of marriage, which had been made on 5 October 1984 and had come into force on 1 January 1988 (see paragraph 12 below). On 12 December 1988 their application was again refused, on the ground that they had not pointed to any serious inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife could put her own surname before the family name (see paragraph 12 below). 9. The applicants then lodged an appeal (Berufung) with the Federal Court (Bundesgericht) in which they complained of, among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and Article 4 para. 2 of the Federal Constitution (see paragraphs 11 and 12 below). On 8 June 1989 the Federal Court allowed the appeal in part. While refusing to apply paragraph 2 of Article 30, which concerned only engaged couples and had no retrospective effect, it held that in the particular case there were important factors which justified applying paragraph 1 in order to allow the applicants to call themselves "Burghartz"; apart from the couple’s age and profession, account had to be taken of the differences between the relevant Swiss and German systems, which were made more acute by the fact that Basle was a frontier city. As to Mr Burghartz’s application to be allowed to bear the name "Schnyder Burghartz", no support for it could be found in Article 160 para. 2 of the Civil Code; the drafting history showed that the Swiss Parliament, out of a concern to preserve family unity and avoid a break with tradition, had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands’. This rule therefore could not avail by analogy a husband in a family known by the wife’s surname. There was, however, nothing to prevent Mr Burghartz from using a double-barrelled name (see paragraph 13 below) or even, informally, putting his surname before his wife’s. 10. According to the applicant, a large number of official documents, in particular the certificate of his doctorate in history, had not since then contained the "Schnyder" element of his surname. 11. Article 4 para. 2 of the Swiss Federal Constitution provides: "Men and women shall have equal rights. Equality shall be provided for by law, in particular in relation to the family, education and work ..." 12. The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows: "(1) The government of the canton of residence may, if there is good cause, authorise a person to change his or her name. (2) Engaged couples shall be authorised, if they so request and if they prove a legitimate interest, to bear the wife’s surname as the family name once the marriage has been solemnised. ..." "(1) Married couples shall take the husband’s surname as their family name. (2) A bride may, however, make a declaration to the registrar that she wishes to keep the surname she has borne to date, followed by the family name. ..." "(1) The children of married couples shall bear their family name. ..." "Within one year of the entry into force of the new Act, a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name." 13. By a custom recognised in case-law, married couples may also put the wife’s surname after the husband’s surname, joining the two with a hyphen. This double-barrelled name (Allianzname), however, is not regarded as the legal family name (Federal Court, judgment of 29 May 1984, Judgments of the Swiss Federal Court, vol. 110 II 99).