Banning of the prefix “von” in applicants’ surnames, after a long period of use. Violation of respect for privacy
JUDGMENT
Künsberg Sarre v. Austria 17.01.2023 (app. no. 19475/20)
SUMMARY
The applicants are all members of the same family (two brothers, a husband and a son). They have the surname “von Künsberg Sarre”, which was first used by their distant ancestor when he went to America in 1961. The domestic authorities ex officio changed their surname by removing the prefix “von”, due to a related law that abolished the aristocracy as early as in 1919. They appealed to the ECtHR for violation of their privacy.
The Court pointed out that names retain a crucial role in the identification of a person and noted at the outset that the applicants were not allowed to bear the surnames they wished, which they had used for many years (from 16-49 years) and that they personally identified with the surname because significant part of her adult life and having created and developed relationships with others in their private and professional lives. Strasbourg accepted that this amounted to an interference with their right to respect for their private life.
The Court found that domestic authorities and courts had relied on the Abolition of Aristocracy Act without sufficient justification. The application of the contested provisions was not consistent and could not be sufficiently foreseen in practice, nor was it necessary in a democratic society.
The ECtHR found a violation of the applicants’ right to respect for private life. It did not award non-pecuniary damage because the applicants submitted their claims out of time.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The four applicants are all related to each other. Three of them received their surname, “von Künsberg Sarre”, by descent from their fathers. Therefore, they have had the surname since they were born (in 1975, 2001 and 1969). One applicant adopted the surname through marriage in 2000. In 2017 the Austrian Consulate General in Germany dismissed an application by one of the applicants, at the time still a minor, to be issued with an identity card in his registered surname “von Künsberg Sarre”, referring to the Abolition of Nobility Act of 1919 and its implementing provisions – legislation that sought prevent privileges of birth through surnames historically associated with the nobility. In 2018 the municipal authorities issued, of their own motion, decisions changing the surname of the remaining three applicants from “von Künsberg Sarre” to “Künsberg Sarre” applying the Abolition of Nobility Act. The applicants’ complaints against the decisions were dismissed by the domestic courts. At the same time, the applicants’ other relatives residing in Austria continue to bear the surname “von Künsberg Sarre”. According to the applicants, they never belonged to the nobility.
THE DECISION OF THE COURT…
Article 8:
Leaving open the question of its lawfulness, the Court accepted that the interference with the applicants’ right to respect for their private and family life had pursued the legitimate aim of protection of the rights and freedoms of others.
Considering whether the interference was necessary in a democratic society, the Court emphasised the (very) long periods during which the applicants had been allowed to bear their original surname, namely forty-three, eighteen, sixteen and forty-nine years. The applicants had undoubtedly identified themselves personally with that surname, having derived it from their parents or through marriage, having borne it for their entire lives until 2018 (in the case of the first, third and fourth applicants) or at least, in the second applicant’s case, for a substantial part of her adult life, and having established and developed relationships with others in their private and, for the adult applicants, professional contexts.
It was only in 2017 and 2018 that the authorities had begun to contest the applicants’ surnames despite the Abolition of Nobility Act dating from 1919. This change in administrative practice had been prompted by the Constitutional Court departing from its previous case-law as a result of the judgment of the CJEU of 22 December 2010 in Sayn-Wittgenstein. The Court stressed, however, this judgment was not pertinent to the present context, in so far as it did not consider the question at issue from the perspective of Article 8, by applying the proportionality test under Convention standards.
Regarding the applicants’ argument that the title of nobility “von” should be distinguished from the prefix “von” as a name component, the domestic courts had not explained why the prohibition of the use of that surname had been necessary to maintain democratic equality and public safety. The failure to engage in this argument was all the more problematic after such long periods of time during which such a prohibition had not been deemed necessary in a democratic society. Formal reference to a legitimate aim could not, in the absence of any actual prejudice to the rights of others, justify a restriction of a person’s right to bear or change a name.
Lastly, the Court noted with concern that, according to the applicants, not all family members now carried the same surname, thereby disrupting their joint, or common, self-identification with that surname. This further undermined the Government’s argument that the change in surname had been necessary for democratic equality and public safety. It was also indicative of an inconsistent application of the somewhat ambiguous underlying domestic legislation by the relevant authorities. In this context, the Court was also mindful of the fact that the continued use of the original surname rendered the applicants, at least theoretically, liable to prosecution and punishment by arrest for up to six months.
Although 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 was not compatible with the purpose of Article 8 of the Convention, which is to protect individuals’ self‑determination and personal development. The change initiated by the authorities of the applicants’ original surnames after long periods of previously accepted use and, secondly, the refusal to issue an identity card with that surname had not been proportionate to the aim pursued by the authorities.
Conclusion: violation (unanimously).
Article 41: no claim submitted (within the time-limit).
