BIJLEVELD v. THE NETHERLANDS
Inadmissible
Elisabeth Palm
The applicant is a Dutch national, born in 1958, and living in Leiden. She is represented before the Court by Ms A.N.H.M. Spruit, a lawyer practising in Rotterdam. A. The applicant and her husband have two sons, born in 1988 and 1991 respectively, and two daughters, born in 1994 and 1997 respectively. Pursuant to the relevant rules of Dutch law, these children bear the surname of the applicant’s husband. As the applicant and her husband wished their sons to bear the surname of their father and their daughter to bear the surname of the applicant, the applicant filed a request on 12 September 1994 to change the surname of her, at that time still unborn, daughter. On 24 November 1994, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request. The applicant’s subsequent appeal to the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 23 May 1996. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It recalled that the State Secretary had based the refusal of the applicant’s request on a finding that the relevant rules on the chance of surnames did not foresee in a request like the applicant’s one and that it had not been established that there were such special circumstances on the basis of which a strict application of the relevant rules would not be acceptable ex aequo et bono. It further noted that the Regional Court had also not found such circumstances. Insofar as the applicant argued that the Dutch rules on surnames are contrary to Article 26 of the International Covenant on Civil and Political Rights in that they amount to a discriminatory treatment between men and women, the Administrative Law Division held that the request at issue only concerned one of the applicant’s children whereas no such request had been made for her other two children. The refusal at issue was not found to be discriminatory as it achieved that all children having the same parents bear the same surname and that therefore no difference between boys and girls was made. Moreover, in the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code (Burgerlijk Wetboek), the legislator had, in the meantime, created the possibility for parents to choose themselves which of their respective surnames their children will bear, albeit with the restriction that all of their children must bear the same surname. It held that this restriction was in conformity with its consideration as to the alleged discriminatory character of the refusal of the applicant’s request. As to the applicant’s argument that the refusal of her request was in violation of Article 8 of the Convention, the Administrative Law Division held that there was no interference, as such, with the applicant’s rights under this provision in that the refusal did not alter the applicant’s personal situation or her family life with her daughter. As to the question whether the Netherlands were under a positive obligation under Article 8 of the Convention to grant the applicant’s request, it was held that the applicant’s personal interest, i.e. the continuation of her family name by her daughter’s surname, was outweighed by the general interest in preserving the stability required in the legal rules governing names (“de handhaving van de nodige stabiliteit in het namenrecht”) and that, therefore, the Netherlands authorities were not under a positive obligation to grant the applicant’s request. B. Relevant domestic law and practice Until 1 January 1998, a child born in wedlock or a child whose father had recognised his paternity automatically obtained the father’s surname. Only limited possibilities existed to obtain change of one’s surname. On 1 January 1998, as a result of the entry into force of the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code, the rules governing surnames were changed. Under the new situation, married parents may make a joint formal declaration, either before or when formally registering the birth of their first child, stating whether the child will bear the surname of the father or the mother. This declaration will continue to apply to any children born subsequently to the couple. In the absence of any declaration, a child will automatically obtain the father’s surname. If the parents are not married, the child will obtain the mother’s surname; also where the father has recognised his paternity. If unmarried parents wish their child to bear the father’s surname, a joint formal declaration to this effect must be made at the time of the father’s recognition of his paternity. The change in the law also included transitory rules in respect of children born before 1 January 1998, provided that the oldest child, at the time the parents make their formal declaration, has not yet attained the age of twelve. These transitory rules remained in force until 1 January 2000. Under these transitory rules, parents may make a joint formal declaration to the effect that their child or children bear the mother’s surname. Any children born subsequently to the couple will then automatically obtain the mother’s surname.