February 18, 2014
This guest post was written by Yaiza Janssens, PhD researcher and teaching/research assistant at the Human Rights Centre of Ghent University. Yaiza works on a project on the regulation of sexism in Belgian Law.
Cusan and Fazzo v. Italy concerned a challenge to transmission of the father’s surname to his children. The applicants in this case are an Italian married couple who – by mutual agreement – wanted to enter their daughter on the civil register under her mother’s family name, Cusan. The Italian authorities dismissed their request and the child was registered under her father’s name, Fazzo.
The couple submitted an appeal against this decision. They argued that there was no prevision in Italian law which prevented their daughter from bearing her mother’s surname. The court dismissed this appeal, noting that although there was no provision of Italian law which obliged a child born to a married couple to be registered under the father’s surname, this rule corresponded to a principle which was rooted in social consciousness and in Italian history. The court noted that all married women took their husbands’ surnames and considered that the children could only be registered under this surname, which was shared by the spouses.
This judgment was upheld by the Court of Appeal. It noted that the Constitutional Court had on several occasions stated that the fact that it was impossible to transmit the mother’s surname to legitimate children was not in breach either of the spouses’ moral and legal equality nor of the equality of citizens as protected and guaranteed by the Constitution. The court of appeal further pointed out that the Constitutional Court had indicated that it was for Parliament to decide on the appropriateness of introducing a different system for conferring surnames. The applicants appealed on points of law. The Court of Cassation held that the rule governing the transmission of the father’s surname to legitimate children raised an issue under the Constitution, suspended the proceedings and ordered that the case file be transmitted to the Constitutional Court.
By a judgment of 16 February 2006, the Constitutional Court ruled the question inadmissible. It held that the system in force derived from a patriarchal understanding of the family and of the husband’s powers, which had its roots in Roman law and was no longer compatible with the constitutional principle of equality between men and women; however, it considered that only Parliament could decide on which of the various solutions available should be adopted. On 29 May 2006 the Court of Cassation took note of the Constitutional Court’s decision and dismissed the applicants’ appeal. On 31 March 2011 Alessandra Cusan and Luigi Fazzo asked the Minister of the Interior to allow them to add the mother’s surname to the surnames of the children born from their marriage. By a decree of 14 December 2012 the Prefect of Milan authorised the spouses to change their children’s surnames to “Fazzo Cusan”.
The applicants lodged an application with the European Court of Human Rights alleging that, by barring the passing of the mother’s surname, the Italian government violated their right to private and family life alone or in conjunction with the prohibition on discrimination.
Previous cases in which parents have fought for the right to name their child concerned the selection of a forename and not a surname (see for example Salonen v. Finland, 1997 & Johansson v. Finland, 2007). However, in the case of Burghartz v. Switzerland the Court did address the right of an individual to select a surname in contravention of standard national practice.
The Court’s assessment
The Court starts by recalling that in many similar cases ( for example Johansson v. Finland, Daróczy v. Hungary, Burghartz v. Switserland) concerning choice or change of forename or surname it had established that this issue fell within the ambit of Article 8 of the Convention, since the forename and surname concerned the private and family life of an individual. The court reiterates that Article 8 of the convention does not contain explicit provisions on names, but “as 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” (par. 56). This was not contested by the parties.
Later on, in assessing whether there has been a difference in treatment and the State’s justifications for the difference in treatment, the court finds that a distinction must be made between the determination of the name at birth and the possibility to change name further in life. In the opinion of the Italian Court of Cassation, the rule according to which the legitimate children are attributed the name of the father at birth, is derived from an interpretation of the combination of a number of provisions of the Civil Code. The Italian law does not provide exceptions to this rule. The Government underlined that there is a Presidential Decree that allows to change the name, and the applicants were allowed to add the mother’s name to the surname of their daughter, thirteen years after her birth. This change did not lead to the attribution of one surname, that of the mother, but to a simple annexation of the name of the mother to that of the father. (par. 62).
In this light, the Court considers that:
in the context of determining the name to assign to their legitimate child, people in similar situations, namely both applicants, respectively father and mother of the child, were treated differently. Indeed, unlike the father, the mother did not obtain the attribution of her surname to the newborn, even though her husband agreed. has not been possible to obtain the award of his surname newborn, despite the consent of her husband. (par. 63)
In assessing whether there was a reasonable and objective justification for the difference in treatment, the Court reiterates that where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group. They recall what they had observed in Willis v. UK and Losonci Rose and Rose v. Switserland:
very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention. (par. 64)
In paragraph 65, the Court recalls that it has had the opportunity to address similar issues in 3 previous cases, Burghartz, Ünal Tekeli and Losonci Rose and Rose. The first was the refusal of a request of a husband who wanted to precede his own surname with that of his wife. The second regarded the Turkish rule that a married woman cannot keep exclusively her maiden name after marriage, while a married man keeps his name as it was before marriage. The case Losonci and Rose was on the necessity, under Swiss law, to submit a joint application to the authorities for spouses wishing to take both the name of the wife, otherwise the husband’s name is assigned by default as new family name after marriage. In all three cases, the Court has concluded to a violation of Article 8, in combination with article 14 of the Convention.
In the case of Ünal Tekeli, the Court observed:
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).
In the case under review, the Court says it can only reach analogous conclusions, because the determination of the name of legitimate children “was made solely on the basis of discrimination based on the sex of the parents”. The rule that is contested wants that the attributed name, without exception, is that of the father, notwithstanding another will expressed by the married couple. (par. 67)
The Court refers to the recognition of the patriarchal foundation of this rule by the Italian Constitutional Court and the confirmation of this statement by the Italian Court of Cassation (par. 67):
… the Constitutional Court found that the current system was the result of a patriarchal conception of the family and the powers of the husband, which had its roots in Roman law and was no longer compatible with the constitutional principle of equality between husband and wife. (par. 17).
The court recognizes that the rule according to which the father’s surname is handed down to legitimate children might have been necessary in practice, and that it was not necessarily incompatible with the convention. Nevertheless, “the inability to derogate from it upon registration of newborns in the civil register is excessively rigid and discriminatory against women” (par. 67).
The Court held, by a majority, that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, taken together with Article 8 (right to respect for private and family) of the Convention. After reaching this decision, the Court did not find it necessary to examine the other violations alleged by the applicants.
Although the Court reiterates the importance of the equality of the sexes and the elimination of discrimination in cases of name legislation, it does not include a thorough gender discrimination analysis. It stays in line with previous jurisprudence on names and does not grab the opportunity to make a stronger statement. There is only reference to statements made by the Italian courts in this case. The Court does not make reference to gender stereotypes, nor does it explicitly oppose to the implicitly patriarchal conception of the family that is connected to patrimony, the practice of automatically giving children the surnames of their fathers. Also, one may wonder how regulations concerning names would look like if they took into account the “best interest of the child.” The interests of the children in these cases have been completely ignored so far.
Immediately after this judgment, the Italian Government took action to put an end to the violation found by the Court. On January 10, 2014 a legislative proposal was presented by the Council of Ministers and sent to the Parliament for approval. Under the proposed law, the child of a married couple would automatically take on the fathers surname, unless the parents reach an agreement and express this in the declaration of birth. In that case, the child can take on the surname of the mother or a combination of both surnames. The same rules count for adopted children or children born outside of marriage. The main problem with this proposal is that both parents have to agree, otherwise the father’s name is assigned by default. This might result in practice to the father having the last word in a lot of cases, especially in a society that is considered even by its highest courts as patriarchal.
 Proposta di legge: Modifiche al codice civile e altre disposizioni in materia di cognome dei coniugi e dei figli, Camera dei deputati – XVII Legislatura, Atti Parlementari N. 1943.