Burghartz v. Switzerland
Switzerland, European Court of Human Rights

Burghartz v. Switzerland

DATE 25-08-1993DOWNLOAD LEGAL DECISION

Judges:

Rolv Ryssdal

Rolv Ryssdal

Thór Vilhjálmsson

Thór Vilhjálmsson

Feyyaz Golcuklu

Feyyaz Golcuklu

Louis-Edmond Pettiti

Louis-Edmond Pettiti

Carlo Russo

Carlo Russo

Nicolas Valticos

Nicolas Valticos

José María Morenilla

José María Morenilla

András Baka

András Baka

Luzius Wildhaber

Luzius Wildhaber

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Topics:

Marital Status AbortionBirth Rights

Related standards:

European Convention on Human Rights Article 8

RELATED STANDARDS

European Convention on Human Rights Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.
European Convention on Human Rights Article 14.

RELATED STANDARDS

European Convention on Human Rights Article 14.

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
European Convention on Human Rights Article 50

RELATED STANDARDS

European Convention on Human Rights Article 50

The expenditure on the Court shall be borne by the Council of Europe.

WHY IT MATTERS:

The Court decided sitting in Chamber with three dissents.
The European Court of Human Rights held that Switzerland's refusal to recognize a husband's choice to use his wife's surname as the family name constituted gender discrimination in violation of Article 14 in conjunction with Article 8 of the European Convention on Human Rights. The Court found that names are a means of personal identification and family linkages, and that the difference in treatment lacked a reasonable and objective justification.
Applicants, both Swiss nationals, were married in Germany, where Mrs. Burghartz maintained citizenship. In accordance with German law, they chose to use Mrs. Burghartz surname as the family name. Swiss authorities registered the couple's name as Schnyder, and refused their application to change it. Applicants appealed the decision to the federal court, which permitted Mrs. Burghartz to use her family name. The federal court denied Mr. Burghartz's request, citing the Government's concern for family unity and tradition in its decision to refuse to recognize absolute equality among spouses to choose the family name. The Applicants brought their claims to the European Commission of Human Rights, claiming a violation of their right to respect for family life under Article 8, and discrimination under Article 14. The Commission found a violation of Article 14 in conjunction with Article 8.
The protection against discrimination provided by Article 14 applies only when the substance of a claim falls within the ambit of any one of the other Articles of the Convention. Thus, discrimination claims under Article 14 must arise in conjunction with another Article, in this case Article 8.

Article 8
The Court first noted that unlike the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child or the American Convention on Human Rights, Article 8 of the European Convention on Human Rights does not contain an explicit provision regarding names. However, the Court found Article 8 to be applicable. It stated, "[a]s a means of personal identification and of linking to a family, a person's name none the less concerns his or her private and family life." The Court also noted that a change of surname could significantly affect Mr. Burghartz's career. The Court declined to examine whether there had been a breach of Article 8 alone.

Article 14
The Court first noted that "the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention." The Court rejected the State's purported justification of family unity for not permitting a husband to adopt his wife's surname. In making its determination, the Court indicated that, "the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination." The Court concluded that the disparate treatment lacked an objective and reasonable justification, and thus constituted a violation of Article 14 in conjunction with Article 8.

Article 50
The Court made an equitable assessment regarding the Applicants' claims for the costs of their legal representation before national courts, awarding them 20,000 Swiss francs.

Dissents
Judge Thór Vilhjálmsson dissented, finding that the prejudice not severe enough to warrant international human rights protection, and that Article 8 was not applicable.

Judges Pettiti and Valitcos dissented, finding Article 8 inapplicable to the issue of family names. They found that names, like the issue of nationality, "must remain within the State's domain and does not come within the ambit of the Convention." They characterized the Court's decision in this case as extreme, as it was "not of major importance."

Judge Russo dissented in part, finding Article 8 applicable, but not finding a breach as the Government had permitted the couple to change their name informally.
The Court found a violation of Article 14 in conjunction with Article 8, and awarded applicants their costs for legal representation before national authorities in the amount of 20,000 Swiss francs.
European Court of Human Rights.
European Court of Human Rights.
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