Last week, the European Court of Human Rights released a decision in favor of Italian parents whose attempts to give their child her mother’s surname were frustrated by the State’s adherence to traditional naming practices. ECtHR, Cusan and Fazzo v. Italy, no. 77/07, Judgment of 7 January 2014 (French only). The Court found the State’s refusal to allow a mother to pass her surname to her children violated the prohibition against discrimination, taken together with the right to respect for private and family life as set forth in the European Convention on Human Rights. [ECtHR]
Cusan and Fazzo v. Italy
Following the birth of their daughter, the applicants requested that the child be registered under her mother’s surname rather than her father’s. The First Tribunal of Milan refused this request on the grounds that traditional practices in Italy require that all children born to married couple receive their father’s last name. After an extensive and largely unsuccessful appeal to courts in Italy, the couple eventually received authorization to add the mother’s last name to the father’s so the child could bear both surnames (Fazzo Cusan). However, the applicants were still prohibited from registering their child solely under her mother’s surname. [ECtHR]
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. ECtHR, Cusan and Fazzo v. Italy, no. 77/07, Judgment of 7 January 2014, para. 27 (French only). Additionally, the applicants claimed a violation of the right to equality between spouses (Article 5 of Protocol 7) alone or taken together with the Convention’s prohibition on discrimination. Id. at para. 70.
The Court’s jurisprudence has established that discrimination occurs when a State treats in a different manner, without an objective or reasonable explanation, people in comparable situations. Id. at para. 58. In this case, the Court found that the practice of allowing the father but not the mother to pass a surname to a child resulted in unequal treatment of the father and mother. Id. at para. 63. Notably, the difference in treatment occurred solely because of the different sex of the two parents.
However, different treatment only constitutes prohibited discrimination, under Article 14 of the European Convention on Human Rights, if the State provides no objective and reasonable justification that is acceptable to the Court. See Cusan and Fazzo v. Italy, Judgment of 7 January 2014, para. 59. Emphasizing the importance of eliminating any form of discrimination on the basis of sex, the Court found that the traditional practice of passing the father’s surname to children born to a married couple was not sufficient to justify gender discrimination. The Court also noted that the patriarchal conception of family and husband as ruler of the household is no longer compatible with the principle of equality between men and women. Id. at para. 67.
Furthermore, the tribunal determined that rigidity of the Italian rule and the resultant gender discrimination outweighed any possible practical necessity. Therefore, the Court found a violation of the prohibition against discrimination in conjunction with the right to private and family life. After reaching this decision, the Court did not find it necessary to examine the other violations alleged by the applicants. See Cusan and Fazzo v. Italy, Judgment of 7 January 2014, paras. 67-69.
Other European Court Decisions Concerning Names
Although the European Convention on Human Rights does not explicitly reference the right to a name, the Court has determined that “[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.” ECtHR, Burghartz v. Switzerland, Series A no. 280-B, Judgment of 22 February 1994, para. 24.
In cases regarding names or naming, the Court has given the State a wide margin of appreciation to determine whether or not individuals have the right to select a certain name for themselves or their child. See e.g., ECtHR, Stjerna v. Finland, no. 18131/91, Judgment of 25 November 1994; ECtHR, Guillot v. France, no. 22500/93, Rep. 1996-V, Judgment of 24 October 1996.
In previous cases concerning parents’ right to select a name for their child, the Court has carefully balanced State’s interest in maintaining certain naming practices against the parents’ interest in selecting their child’s name. See e.g., ECommHR, Salonen v. Finland, (dec.) no. 27868/95, 2 July 1997. When State practice results in what the European Court finds to be an unreasonable or unjustifiable restriction on parents’ ability to select a name, the Court may find a violation of the right to private and family life. See e.g., ECtHR, Johansson v. Finland, no. 10163/02, Judgment of 6 September 2007. Notably, each of these cases in which parents have fought for the right to name their child have involved the selection of a forename and not a surname, as was at issue in Cusan and Fazzo.
However, the Court did address the right of an individual to select a surname in contravention of standard national practice in the case of Burghartz v. Switzerland. See ECtHR, Burghartz v. Switzerland, Series A no. 280-B, Judgment of 22 February 1994. In that case, a couple wished to use the wife’s surname as their “family name” instead of the husband’s name as was traditional. The Court found that the State’s unwillingness to allow the couple to derogate from traditional practice resulted in a difference of treatment between the spouses. Because the State was unable to provide an “objective and reasonable justification” for the difference in treatment, the Court found a violation of the prohibition against discrimination, taken together with the right to family and private life. In both the Burghartz and Cusan and Fazzo cases, the Court rejected State enforcement of naming practices that resulted in gender discrimination.