November 16, 2010
Shakespeare suggested that the names of things do not matter, but only their substance. The applicants in Losonci Rose and Rose v. Switzerland disagree. So does the Court, and so do I.
The applicants in this case are a couple who wanted to retain their own names after marriage, rather than adopt a double-barreled surname for one of them. Complicating factor was that the man was Hungarian by birth. Their reasons for not wanting to change their names were the difficulties in changing names in Hungarian law and the fact that the second applicant, who held an important post in the federal administration, was well known under her maiden name. The first applicant accordingly expressed the wish for his surname to be governed by Hungarian law – as his national law – which entitled him to use his surname on its own. The Swiss authorities denied this request and the applicants decided that, in order to be able to marry, they would take the wife’s surname as the “family name” for the purposes of Swiss law. Their surnames were entered in the register of births, deaths and marriages as “Rose” for the second applicant and “Losonci Rose, né Losonci” for the first applicant, who requested after the marriage that the double-barrelled surname he had “provisionally” chosen be replaced in the register by the single surname “Losonci”, as permitted under Hungarian law, without any change to his wife’s surname. Again, the Swiss authorities denied their request. The applicants appealed, arguing that this decision violated the Constitutional principle of equal treatment and Article 14 of the Convention. They argued that in the case of a Swiss husband and Hungarian wife, the couple could keep their own name, because the husband’s name automatically became the family name, and then the wife could choose to have her name governed by her national law. When the Federal Court also denied their request, the applicants applied to the Strasbourg Court, claiming a violation of article 8 in conjunction with article 14.
The facts of this case are a little more complicated than most of the surname cases that have been decided by the Court so far. This reflects the growing sophistication of laws governing surnames – the times when married women had no choice but to adopt their husband’s name have passed. Rose and Losonci Rose remind us, however, that in the domain of names women and men are by no means equal. The reasons put forward by the Swiss government for the difference in treatment between men and women are familiar: it is the “principle of the unity of the family name” that is supposedly protected here (see par. 11 and 45). The Court is of the opinion that this could form an objective justification, but that there are no sufficiently compelling reasons for the difference in treatment.
The Court observed in Ünal Tekeli v. Turkey (2004): “The first question for the Court is whether the tradition of reflecting family unity through the husband’s name can be regarded as a decisive factor in the present case. Admittedly, that tradition derives from the man’s primordial role and the woman’s secondary role in the family. Nowadays the advancement of the equality of the sexes in the member states of the Council of Europe, including Turkey, and in particular the importance attached to the principle of non-discrimination, prevent States from imposing that tradition on married women.” (par. 63)
I think it is a pity that the Court did not in the present case probe deeper into what an appeal to “family unity” means. Yofi Tirosh, who has recently published a fascinating critique of the Court’s case law on surnames, argues that: “Invoking the principle of family unity to legitimize state regulation of surnames is problematic in at least three ways. First, it is problematic on semiotic grounds. That a name would reflect family unity is not a natural fact or a neutral observation about the way names work. It is a normative statement, which suppresses the fact that the work of names is culturally contingent.. . . Second, in a liberal state, and in particular in the area of human rights, preferring a family interest over the rights of individual is highly problematic in that it prioritizes a social construct (family) that is useful only to the extent that it serves as a means for promoting the rights of its individual members.. . And third, invoking the principle of family unity of names ignores the complexity of contemporary families.” (p. 271-272)
The Court does however recognize the importance of names. Names are not just empty vessels; according to the Court they are part of a person’s main individualization in society and names belong to the core considerations concerning the right to respect for private and family life (par. 51). This is a step forwards.