CASE OF GARNAGA v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - finding of violation sufficient
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych
6. The applicant was born in 1968 and lives in the town of Bila Tserkva, Ukraine. 7. 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. 8. 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). 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. The relevant provision of the Constitution reads as follows: “... 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.” 16. The relevant provisions of the Code read as follows: “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.” 17. The relevant provisions of the Code read as follows: “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 ...” “1. An individual has the right to 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 ...” 18. The relevant provisions of the Code read as follows: 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). 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. “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.” 19. 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: “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.” “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.” 20. 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.” 21. 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.” 22. 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.” 23. 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.” 24. 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.”