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SECOND
SECTION
CASE OF
DARÓCZY v. HUNGARY
(Application
no. 44378/05)
JUDGMENT
STRASBOURG
1 July
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Daróczy v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44378/05) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Ms Tibor Ipolyné
Daróczy (“the applicant”), on 5 December 2005.
- The
applicant was represented by Mr A. Kádár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- The
applicant alleged that her right to respect for private life within
the meaning of Article 8 of the Convention was breached by the
statutory change of her married name.
- On
9 July 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Ms Tibor Ipolyné Daróczy, is a Hungarian
national who was born in 1933 and lives in Budapest.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1950 the applicant married Mr Tibor Ipoly Daróczy.
According to birth certificate no. 1786/1927 Mr Daróczy
was entitled to bear the two above-mentioned forenames from the very
moment of his birth.
Her husband signed the marriage certificate as “Tibor Daróczy”.
The applicant chose to bear her husband's name by putting the suffix
“-né” referring to the marriage (házasságra
utaló toldás) after the first given name (Tibor) of
her husband. In accordance with the widespread custom in Hungary, the
latter only used his first given name even in official contexts. The
applicant's married name was registered as Tiborné Daróczy
on the marriage certificate.
- The
official before whom the marriage took place did not observe that the
name chosen was against the law since, at the material time, a woman
could only choose to bear the whole name of her husband, including
all the given names. In the present case, the applicant's correct
married name should have been Tibor Ipolyné Daróczy.
- The
mistake was not revealed in 1954 when identity cards were introduced
in Hungary. The applicant's renewed identity card issued in 1974 also
contained the name Tiborné Daróczy. The applicant used
this name in all official and private business. In particular, her
social security card and tax identification certificate were issued
in the name Tiborné Daróczy.
- In
1984 Hungary introduced electronic data recording. In the new State
Registry (Állami Népességnyilvántartó)
the applicant's name was automatically entered in the manner
prescribed by law, as Tibor Ipolyné Daróczy. However,
she did not receive any official notification of this fact. In 1994
she and her husband were entered on the electoral register (választói
névjegyzék) under the names Tibor Daróczy
and Tiborné Daróczy. This database relied on the
general State Registry.
- In
1996 the applicant's husband died. The applicant then used the name
Tiborné Daróczy with the prefix “özv.”
indicating that she was a widow.
- In
2004 the applicant lost her identity card. Based on the State
Registry, the Registry Office issued a new card which indicated her
name as the widow of Tibor Ipoly Daróczy (özv. Tibor
Ipolyné Daróczy). On 13 January 2005 the
applicant obtained an official certificate containing this name. The
certificate's only function was to enable her to access her bank
account since her new identity card contained a name that was
different from the one she had used when opening the account. The
text of the certificate expressly stated that it had been issued for
one-time use.
- The
applicant lodged a complaint with the Ministry of the Interior,
seeking permission to bear the name Tiborné Daróczy.
In November 2004 the Ministry informed her that, since her husband's
official name was Tibor Ipoly Daróczy, she was entitled and
obliged to bear that name in its entirety as a widow, and that it was
not possible to change it to another form. Her name is at present
registered as Tibor Ipolyné Daróczy.
B. Relevant domestic law
1. Decree of the Minister of Internal Affairs no. 80.000 of 1906 –
Order on Administering the State Registries (as in force at the time
of the applicant's marriage)
Section 55
“(3) As a general rule, women should be entered in
the registry under their family name (birth name) and forename.
Exceptions, having to bear their husbands' as well as their own
family name and forename:
(a) married women, widows...”
2. Act no. 4 of 1952 on Marriage, Family and Guardianship
Section 25
“(1) After the marriage, the wife shall bear
a) her whole maiden name, or
b) the whole name of her husband with the suffix
referring to the marriage, to which she may attach her whole maiden
name, or
c) her husband's family name with the suffix referring
to the marriage, to which she attaches her whole name, or
d) her husband's family name to which she attaches her
first name. ...”
3. Law-Decree no. 17 of 1982 on Registers, Marriage Procedure and
Bearing a Name
Section 27/B
“(6) A person bearing his/her spouse's name cannot
alter it by way of a name-change (névváltoztatás).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that she had been obliged to change the name she
had borne for more than 50 years, in breach of Article 8 of the
Convention, which provides:
“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 argued that the final decision in the case was the
administrative certificate issued on 13 January 2005. Since the
applicant had only lodged her application on 5 December 2005, she had
failed to observe the six-month time-limit. They did not deny,
however, the existence of the mandatory provisions of the domestic
law governing the question.
- The
applicant maintained that the violation of her right to private life
had been continuous. She was of the view that the issue of the
administrative certificate could not be seen as an administrative
decision since it only certified her official name as it stemmed from
the legal provisions. Consequently, it was not the issue of the
certificate that constituted the violation of her right to private
life but the law regulating the question itself. Therefore, the issue
of the certificate cannot be regarded as the starting date of the
six-month period.
- The
Court reiterates that the six-month rule, in reflecting the wish of
the Contracting Parties to prevent past decisions being called into
question after an indefinite lapse of time, serves the interests not
only of the respondent Government but also of legal certainty as a
value in itself. It marks out the temporal limits of supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible (see, for example, Walker v. the
United Kingdom (dec), no. 34979/97, ECHR 2000-I).
- However,
the Court also observes that, as long as a continuing situation
exists, the six-month period does not commence, since it serves to
make acts and decisions from the past unassailable after a given
period (see Malama v. Greece, no. 43622/98, § 35,
ECHR 2001 II).
- The
Court notes that the formulation of the applicant's name is governed
by the mandatory provisions of Act no. 4 of 1952 on Marriage, Family
and Guardianship. It finds unconvincing the Government's assertion
that the final decision in the case was the certificate issued on
13 January 2005. The Court draws attention to the fact that
the impugned certificate did not affect the applicant's name in any
way. It was not a formal,
administrative decision, but only served as a declaration concerning
the legally correct form of the applicant's name in order to allow
her to access a bank account. The change of the applicant's name
therefore arose from the
law itself rather than from the issue of this
document. Consequently, the obligation imposed on the applicant to
change her name has existed since 1952 and still exists ipso iure.
Those circumstances indicate a continuing situation in relation to
her complaints concerning her right to private life.
- It
follows that the Government's preliminary objection must be
dismissed. Furthermore, the Court notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention, and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The Government's arguments
- The
Government submitted that it could be established from the birth
certificate and the marriage certificate (although the late
Mr Tibor Ipoly Daróczy signed the latter as
“Tibor Daróczy”) that the applicant's late husband
had had two forenames since birth. He had never initiated
a change of his name. They also pointed out that, flowing from the
provisions of the Decree, married women were allowed to bear one form
of name: the husband's full name with the suffix “-né”,
indicating married status. Concerning the prohibition on
changing the name, the Government submitted that its aim was to
protect the husband's interests, namely to prevent a wife from
changing her married name without her husband's consent.
- Lastly,
the Government maintained that names could be changed by instituting
proper proceedings rather than by entering short or simplified
versions in registers. However, the applicant and her husband had
failed to initiate such proceedings, therefore, the situation
complained of had been caused by their own conduct. This injurious
practice went against the legal provisions aimed at ensuring the
authenticity of State registers and the protection of other persons'
rights. Therefore, the interference that this regulation constituted
could not be regarded as unnecessary or disproportionate in a
democratic society.
2. The applicant's arguments
- The
applicant submitted that the Decree of the Minister of Internal
Affairs no. 80.000 of 1906 – Order on Administering the State
Registries (“the Decree”) did not contain any specific
rules on the use of names in respect of married women and that,
therefore, the irregular constitution of the name she had used was
not unlawful at the time. Without knowing the exact practice of the
relevant period, from the wording of the Decree three possibilities
flow: bearing the husband's full name as entered in the State
Registry, applying the baptised name of Mr Daróczy or using
the version she used in everyday life. She also noted in that
connection that, according to the Government's argument, her married
name should have been Daróczy Tibor Ipolyné Lósy
Éva (the last two being her own family and forename) which was
not what the State authorities had required. This showed the
arbitrary nature of their interpretation.
- However,
in her view, it is likely that she and her husband were never entered
in the State Registry under the names suggested by the Government. In
1994 they were entered on the electoral register as Tibor Daróczy
and Tiborné Daróczy. This database is founded on the
State Registry, and, therefore, the applicant was of the view that at
that time she had been officially registered under the “old”
version of her name. The applicant also submitted that until 2004,
whenever an authority issued an official document for her, the use of
her name was not questioned in any way. In sum, the applicant
maintained that she could not be held responsible for failing to
submit an official request to change her name, since she had a
well-grounded reason to believe that Tiborné Daróczy
was her official name.
- As
to the need for a restriction on her right to bear a name, the
applicant acknowledged the State's margin of appreciation when
regulating the issue. However, she noted that the length of time
during which the mistake had remained unnoticed – and,
therefore, she had participated in all aspects of public and private
life under the name Tiborné Daróczy – was due to
an omission by the authorities. This discredited the Government's
reasoning as regards ensuring the authenticity of the State Registry
and the protection of the rights of others. Lastly, the applicant
pointed out that her name represents a very strong personal
identification for her and a link to her late husband. To deprive her
of the possibility of continuing to use a name she has borne for such
a long time without any pressing social need may not be regarded as
necessary or proportionate in a democratic society.
3. The Court's assessment
- The
Court reiterates that names retain a crucial role in a person's
identification. However, even if there may exist genuine reasons
prompting an individual to wish to change his or her name, the Court
has accepted 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 v. Finland, judgment of
25 November 1994, Series A no. 299 B, p. 61,
§ 39, and Johansson v. Finland, no. 10163/02,
§§ 35, 37 ECHR 2007 ...).
- The
Court notes that in the particular sphere under consideration the
Contracting States enjoy a wide margin of appreciation. The Court's
task is not to substitute itself for the competent authorities in
determining the most appropriate policy for regulating changes of
names, but rather to review under the Convention the decisions that
those authorities have taken in the exercise of their power of
appreciation (see, for instance, Hokkanen v. Finland judgment
of 23 September 1994, Series A no. 299-A, p. 20, § 55; mutatis
mutandis, Handyside v. the United Kingdom, judgment of
7 December 1976, Series A no. 24, p. 23, § 49).
- In
the particular circumstances, the Court considers that the Respondent
State's reluctance to allow the applicant to bear the name she wishes
amounts to an interference with her private life. Since it has not
been in dispute between the parties that the restriction on the
applicant's right was prescribed by law and pursued a legitimate aim,
the Court will focus on the question of necessity and
proportionality. In weighing up the different interests at stake,
consideration should be given, on the one hand, to the applicant's
right to bear a name, and on the other hand the public interest in
regulating the choice of names.
- The
Government argued that the legitimate aim pursued was to protect the
authenticity of the State Registry and the rights of others. The
Court accepts that due regard has to be given to the accuracy of the
official registers and their protection is a core public interest.
However, it is hard for the Court to see how the applicant's use of
her name had endangered the above-mentioned aims, for the following
reasons.
- The
applicant started to use the name Tiborné Daróczy in
1950 when she married. It is disputed between the parties whether at
the time it was the correct way to use her married name. However, the
Court considers that, even accepting the Government's opinion –
i.e. that the applicant bore her name erroneously – this cannot
be decisive. The Court draws attention to the fact that the applicant
used this version of her name in all aspects of her official life.
State authorities issued her with several official documents,
including her identity card, she was entered on the electoral
register and she opened a bank account using that name. The
Government did not put forward any convincing argument to show that
the allegedly incorrect use of the applicant's name had in any way
prejudiced the Hungarian system of State registries in 54 years.
- It
is also difficult for the Court to accept that the restriction was
necessary for the protection of the rights of others, namely the
applicant's husband. There is nothing in the case file to indicate
that the late Mr Tibor Daróczy used his name in
another form and, therefore, it is implausible that the applicant's
intention to continue using her name could infringe his rights, still
less after his death.
- The
Court underlines that, while it is true that States enjoy a wide
margin of appreciation concerning the regulation of names, they
cannot disregard its importance in the lives of private individuals:
names are central elements of self-identification and
self-definition. Imposing a restriction on one's right to bear or
change a name without justified and relevant reasons is not
compatible with the purpose of Article 8 of the Convention, which is
to protect individuals' self-determination and personal development
(see, inter alia, Pretty v. the United Kingdom,
no. 2346/02, § 61, ECHR 2002 III). Formal
reference to a legitimate aim – like, in this case, ensuring
the authenticity of the State Registry – in the absence of any
actual prejudice to the rights of others cannot justify a restriction
of that right.
- In
the present case, the Government did not put forward any convincing
argument showing that the genuineness of the system of the State
registries or the rights of the applicant's late husband were at real
risk. The restriction imposed on the applicant was therefore
unacceptably rigid and completely disregarded her interests, in that
she has been forced to alter a name which she has used for more than
50 years and which, beyond its relevance in self-identification and
self-determination as mentioned above, also gave her a strong
personal link to her husband.
- Having
regard to the above arguments, the considerations relied on by the
Government cannot be said to outweigh the interests claimed by the
applicant under Article 8 of the Convention in requesting to continue
using the name she has borne for more than 50 years. A fair balance
has therefore not been struck.
- Accordingly,
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 3,500 euros (EUR) in respect of
non-pecuniary
damage.
- The
Government found the applicant's claim excessive.
- The
Court finds that the applicant can reasonably be considered to have
suffered some non-pecuniary damage in the circumstances. Making its
assessment on an equitable basis, the Court awards her the sum
claimed in its entirety under this head.
40. Moreover,
in view of the fact that the violation established in the present
case is of a continuing nature (see paragraph 19 above), the Court is
of the view that the Government should take steps to rectify the
applicant's personal situation and recognise in some official manner
that she may retain her longstanding name of Tiborné
Daróczy.
B. Costs and expenses
- The
applicant also claimed EUR 1,800 for the costs and expenses incurred
in the proceedings before the Court. She submitted that her claim is
based on an agreement concluded with her lawyer, according to which
she would only be billed if the case was closed successfully. She
filed an itemised statement of the hours billable by her lawyer,
corresponding to 15 hours of work (one hour of client
consultations; six hours for studying the file and 8 hours for the
preparation of submissions) spent by her lawyer on the case, charged
at an hourly rate of EUR 120.
- The
Government found the applicant's claim excessive.
- According
to the Court's case-law, an applicant is entitled to 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 information in
its possession and the above criteria, the Court finds it reasonable
to award the sum claimed in its entirety.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible by a
majority;
- Holds unanimously that there has been a
violation of Article 8 of the Convention;
3. Holds
unanimously
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Hungarian forints at the
rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand five hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,800 (one thousand eight hundred euros) in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 1 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
