CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28319/95                       by Georg ROGL                       against Germany        The European Commission of Human Rights sitting in private on 20 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 May 1995 by Georg ROGL against Germany and registered on 25 August 1995 under file No. 28319/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   FACTS        The applicant, born in 1950, is a German national and resident at Irchenrieth.   In the proceedings before the Commission he is represented by Mr. G. Rixe, a lawyer practising in Bielefeld.   A.    Particular circumstances of the case        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.        The applicant married Ms. B. in September 1984, his surname becoming their common family name.   A daughter, Nicole, was born to them in April 1985 and also acquired the applicant's surname.   The spouses separated some weeks after Nicole's birth.   The divorce of this marriage was pronounced in 1987, and the right to custody over Nicole was transferred to her mother, while the applicant was granted a right of access.        In 1989 Nicole's mother married Mr. M., and the couple took "M." as family name.   In 1991 a son was born to them.   Nicole was living with her mother, her mother's husband and her step-brother.        On 16 September 1991 Nicole's mother applied to the Cham Administrative Authority (Landratsamt) that her daughter's surname be changed to "M."        On 9 March 1992 the Cham Administrative Authority decided that Nicole's surname be changed to "M.".        In its decision, the Authority noted that Nicole's parents had separated shortly after her birth and that there had been problems regarding the exercise of the applicant's right of access.   Since the beginning of 1991 the applicant had refrained from exercising his right of access in the interest of Nicole. However, he wished to be regularly informed about her well-being.   Furthermore, Nicole knew Mr. M. since 1989 and accepted him as father.   When applying for a change of Nicole's surname, her mother intended further to integrate her in the new family, as it was also Nicole's wish to take the surname "M.".         The Authority found that the conditions under the relevant provisions of the Change of Surnames Act (Namensänderungsgesetz) were met.   In particular, Nicole's mother, having the right to custody, was entitled to lodge the request on Nicole's behalf.   The persons affected by the decision (Beteiligte) had been heard.        The Authority noted that the applicant had not agreed to the change of Nicole's surname.   He had made his decision dependent upon a conversation with Nicole; such a conversation had however not taken place.   The Cham Youth Office (Kreisjugendamt) had submitted an opinion on 26 November 1991 according to which, having regard to its investigations and to the documents relating to the decision on the applicant's right of access, Nicole would suffer from keeping her surname.   Thus, if the requested change were to be refused, there was a serious risk that Nicole would develop attitudes of aggression and hostility towards the applicant.   The Authority further considered that the applicant, when requested to state his objections in the light of the above opinion, questioned the findings of this opinion, but did not submit any reasons to show that the requested change should be refused in the interest of Nicole's well-being.        The Authority observed that, in accordance with S. 3 of the Change of Surnames Act, a surname may only be changed on the condition that there is an important reason (wichtiger Grund) justifying the requested change.   There was such an important reason where the legitimate interest of the person requesting the change outweighed the legitimate interests of the other persons affected by the change - in the present case Nicole's mother, the applicant and Mr. M. - as well as the public-law aspects of regulating the use of names.        The Authority considered in particular that, according to the findings of the Youth Office, the relationship between the applicant and Nicole was at that time seriously disturbed; while the applicant regularly asked about Nicole's well-being, Nicole refused to have any contacts with him.   Nicole had developed a good relationship with Mr. M. whom she regarded as father.   She was growing up with her mother, Mr. M. and her step-brother, fully identified herself with this family and had expressed her wish to have the same surname as the other family members.   In this family Nicole received her education and parental care, and, according to the Youth Office, the change of her surname was necessary in order to ensure her integration in this family.   The Authority found that, balancing Nicole's interests in changing her surname and the applicant's interests in her keeping his surname, as well as the general principles governing the use of names, there was an important reason justifying the change of her surname to "M.".        On 23 July 1992 the Regional Government of Oberpfalz dismissed the applicant's administrative appeal (Widerspruch).   In these and the following proceedings the applicant was represented by counsel.        On 7 December 1992 the Regensburg Administrative Court (Verwaltungsgericht) dismissed the applicant's action to challenge the decision of 9 March 1992, as confirmed on 23 July 1992.   The Administrative Court found that there was an important reason justifying the change of Nicole's surname.        The Administrative Court, referring also to the administrative rules on the change of surnames (Verwaltungsvorschrift zum Gesetz über die Änderung von Namen), regarded as decisive whether or not, following the natural parents' divorce and the marriage of the parent exercising the right of custody, the change of the child's surname was necessary in the interest of the child's well-being.   When parents divorced, their children had, to some extent, to adapt to this situation and, in case of a new marriage, also to the possible difference of surnames. The change of surname was not supposed to repress the children's memory of their natural parent.   A stable relationship with the parent not exercising the right of custody was as important for the child's well- being as the child's integration within the new family.   However, Nicole had only been some weeks old when her parents separated.   She had never experienced the applicant as a father of the family.   It was, therefore, particularly important to integrate Nicole in the family of her mother, her mother's husband and her step-brother where she experienced family life for the first time.   Any matters which could disturb this aim had to be excluded.   The difference of surnames had to be regarded as such a disturbing element in Nicole's case.   In this respect, the Court found that it was irrelevant whether the question of a change of her surname had arisen as a result of the influence of other persons.   While there were reasons to assume that Nicole's mother attempted to obstruct the relationship between Nicole and the applicant, in any event she had not taken any positive action to support such a father-child-relationship.   The applicant had no longer been able to exercise his right of access.   Nicole was thus under the sole influence of her mother.   It could however be expected that, if the applicant did not exercise his right of access and Nicole's surname was changed, the problems between the applicant and his divorced wife could be overcome.   Nicole would have a better chance to establish, as an adolescent, contacts with the applicant.   To this extent, the change of Nicole's surname would even serve the applicant's interest. According to the Court, the main consideration was, however, the fact that Nicole was growing up and being educated together with her step- brother.   Bearing the same surname was of importance for the solidarity within the family, in particular between the children.   Even though children within a family addressed each other with their forenames, Nicole would be faced with the difference of surnames in her contacts with persons outside the family and in particular at school.   In such circumstances there was in general an important reason justifying the change of the surname.   In Nicole's case, there were no exceptional circumstances arguing against the change of her surname.        The applicant lodged an appeal (Berufung) with the Bavarian Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof). A hearing took place before the Court of Appeal on 3 November 1993.        On 30 November 1993 the Bavarian Administrative Court of Appeal dismissed the applicant's appeal.        The Court of Appeal confirmed the lower instances' general considerations regarding the change of a child's surname following the parents' divorce and the further marriage of the parent exercising the right of custody.   It found in particular that the applicant, who had refrained from exercising his right of access in order to avoid any further conflicts, was attached to his daughter Nicole and his interest in keeping, by means of the same surname, a relation with his daughter was, therefore, not negligible.   However, there were particularly important interests justifying the change of Nicole's surname, namely her psychological situation, especially following the birth of her step-brother.   Having regard to the opinion of the Cham Youth Office of 26 November 1991 as well as an earlier psychological expert opinion of 8 December 1988 which had been prepared in the context of court proceedings regarding the applicant's right of access to Nicole, the Court of Appeal considered that Nicole's well-being would be at risk if her surname was not changed.   In this respect, the Court noted that, according to the opinion of December 1988, Nicole had important relations to her mother and other persons in her mother's surroundings, which were on the whole positive - with the exception of the influence exercised with regard to her relation to the applicant, and the applicant only played a subsidiary role in her life.   According to the opinion of November 1991, Nicole had already fully integrated into the new family and had a very good relation to Mr. M. who had taken the position as her father, while the relation between the applicant and Nicole was seriously disturbed.   Moreover, the applicant had never had the position of a family father regarding Nicole.        The Court of Appeal further considered that it had not been necessary to take supplementary psychological expert evidence, as there was nothing to show that the relevant circumstances had changed since November 1991 when the expert opinion of the Youth Office had been prepared.   Moreover, taking into account that Nicole had been heard by both the experts in 1988 and 1991, there was no necessity to hear her personally in court.          The Court of Appeal refused the applicant leave to apply to the Federal Administrative Court (Bundesverwaltungsgericht) for review on points of law.   The decision was served upon the parties in December 1993.        The applicant lodged an appeal (Nichtzulassungsbeschwerde) to the Federal Administrative Court.        On 27 June 1994 the Federal Administrative Court dismissed the applicant's appeal.   The applicant's submission that the request for a change of Nicole's surname of September 1991 had not been served upon him related to the administrative proceedings and did not amount to a procedural mistake in the administrative court proceedings where he had full opportunity to present all arguments.   As regards his complaint that the Administrative Court of Appeal had not ordered the taking of further psychological expert evidence, it found that the Court of Appeal had duly assessed the relevant circumstances on the basis of two previous opinions.   In any event, the applicant had not requested the taking of further evidence.   Finally, the applicant's case did not involve a matter of principle.        On 9 December 1994 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).   The Federal Constitutional Court considered that the complaint did not involve a matter of principle, as the applicant's submissions did not disclose any reason to doubt the constitutionality of the legal provisions governing the change of surnames.   Moreover, there was no indication that the applicant, in the course of the administrative court proceedings, had not been able effectively to argue his case.   Finally, the findings of the administrative courts that in the instant case the child's well-being justified the change of her surname did not show any lack of respect for the rights of the parent not exercising the right of custody.   The decision was mailed on 16 December 1994.   B.    Relevant domestic law        The change of surnames is regulated in the Change of Surnames Act (Namensänderungsgesetz).   According to S. 3 para. 1, a surname may only be changed if there is an important reason to justify such a change. The relevant circumstances are to be established ex officio, and all persons directly affected by the envisaged change (unmittelbar Beteiligte) as well as the local police office and other persons possibly affected by the envisaged change of the surname are to be heard (S. 3 para. 2).     COMPLAINTS   1.    The applicant complains about the decisions changing his daughter's surname.   He lodges these complaints both in his own name and on behalf of his daughter.   2.    The applicant alleges that the change of his daughter's surname violates his and his daughter's right to respect for their family life within the meaning of Article 8 of the Convention.   He also invokes Article 14, taken in conjunction with Article 8.   He considers in particular that S. 3 of the Change of Surnames Act is not sufficiently precise as a legal basis for the interference with their right under Article 8.   Furthermore, the reasons advanced by the German courts to justify the change of his daughter's surname were not sufficient, and his interests as the natural father were not duly taken into account. According to the applicant, such a change of surname should only be possible with the consent of the other parent.   In any event, his daughter should at least bear her previous and the new surname, joined with a hyphen (Doppelname).   As regards the procedural requirements implicit in Article 8, the applicant further complains that the administrative courts failed to hear his daughter in person as well as her mother.   Moreover, he had not been in a position effectively to argue his case, as the request of September 1991 had not been served upon him.   3.    The applicant complains under Article 6 of the Convention that the administrative courts failed to order a further psychological expert opinion on the question whether or not his daughter would suffer from keeping her previous surname.   He further challenges the assessment of the relevant circumstances by the German courts. Moreover, the courts failed to hear his daughter personally.   The applicant also complains that the Bavarian Administrative Court of Appeal failed to pronounce its decision publicly.   THE LAW   1.    The application relates to the change of the surname of the applicant's daughter Nicole.    The applicant raises complaints, in his own name and on his daughter's behalf, under Articles 6, 8 and 14 (Art. 6, 8, 14) of the Convention.        Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission is only competent to examine an application lodged by a person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.        The Commission notes that the applicant does not have the right to custody over his daughter.   This right was awarded to her mother following the divorce of the parents' marriage.   His daughter Nicole is living with her mother, her mother's second husband and her step- brother and has no contacts with the applicant.   The applicant, therefore, is not empowered to act on his daughter's behalf on the basis of any authority over the child.   Moreover, the applicant has failed to demonstrate that he is otherwise entitled to represent his daughter with respect to this application.           Consequently, the Commission is of the opinion that the first applicant is not entitled under Article 25 (Art. 25) of the Convention to bring any complaints on behalf of his daughter Nicole (cf. No. 8045/77, Dec. 4.5.79, D.R. 16 p. 105).   It follows that the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, insofar as the applicant proposes to submit complaints on behalf of his daughter.   2.    The applicant alleges that the change of his daughter's surname violates his right to respect for his family life within the meaning of Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8), so far as relevant, provides as follows:        "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 ... for the      protection of the rights and freedoms of others."   a)    Applicability of Article 8 (Art. 8)        The Commission recalls that cohabitation is not a condition sine qua non of family life between parents and their minor children.   A child born out of a marriage-based relationship or any other de facto "family" ties is ipso jure part of that "family" unit; from the moment of the child's birth and by the very fact of it, there exists between him/her and his/her parents a bond amounting to "family life", even if the parents are not then living together (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 14, para. 21; Keegan judgment of 26 May 1994, Series A no. 290, pp. 17-18, para. 44; Hokkanen judgment of 23 September 1994, Series A no. 299-A, pp. 19-20, para. 54).        In the present case, the applicant and Ms. B. married in September 1984 and their daughter Nicole was born in April 1985.   The spouses separated shortly afterwards, and divorce was pronounced in 1987. The right to custody over Nicole was granted to her mother.   The applicant was entitled to have access to Nicole; however, following problems in the exercise of his right of access, the applicant, in the interests of Nicole, refrained from further exercising this right. However, he remained interested in Nicole's further development and well-being.        In these circumstances, the Commission considers that from the moment of the child's birth there existed a bond between her and the applicant which amounted to family life and which did not break down following separation and divorce.   b)    Compliance with Article 8 (Art. 8)        The Commission, bears in mind that, in the traditional German system of married couples having a joint family name, the surname of children born out of such marriage reflects the link to this family. In this context, the Commission had regard to the case-law of the Convention organs according to which, since an individual's name constitutes a means of personal identification and a link to a family, it does concern his or her private and family life (cf. Eur. Court H.R., Burghartz judgment of 22 February 1994, Series A no. 280-B, p. 28, para. 24; Stjerna judgment of 25 November 1994, Series A no. 299-B, p. 60, para. 37).        A parent who, following divorce, does not exercise the right of custody, may legitimately regard the fact that the child bears this joint family name as the outer sign of the continuing bond between them.   It is true that, in the particular circumstances of the present case, the impugned decision did not directly affect any "mutual enjoyment by parent and child of each other's company" or parent and child "maintaining regular contacts with each other" (cf. Eur. Court H.R., Berrehab judgment, loc. cit., p. 14, para. 23; Eriksson judgment of 22 June 1989, Series A no. 156, p. 24, para. 58).   However, the applicant had already faced problems in exercising his right of access to his daughter, and had eventually refrained from visiting her.   The change of his daughter's surname may be considered as further weakening the family bond between the applicant and his daughter.        The Commission therefore considers that the decision of the German authorities to change the surname of the applicant's daughter Nicole amounted to an interference with the applicant's right to respect for his family life, as guaranteed under Article 8 para. 1 (Art. 8-1) of the Convention.        Such interference is in breach of Article 8 (Art. 8), unless it is justified under paragraph 2 of Article 8 (Art. 8-2) as being "in accordance with the law" and "necessary in a democratic society" for one of the legitimate aims set out in this provision.        The Commission notes that the change of Nicole's surname was based on the relevant provisions of the Change of Surnames Act,   as interpreted in the case-law of the German courts.   While the relevant provisions inter alia used general terms, their bearing was clarified by the German courts.   The applicant's submissions in this respect do not show any lack of legal certainty (cf. Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, pp. 22-23, para. 48).   The interference was therefore "in accordance with the law".        Moreover, the change of her surname envisaged Nicole's well-being and thus pursued a legitimate aim within the meaning of Article 8 para. 2 (Art. 8-2).        It remains to be examined whether the interference was "necessary in a democratic society" to achieve the said aim.   According to the established case-law, the task of the Convention organs is to review under the Convention the decisions taken by the national authorities in the exercise of their power of appreciation.   In so doing, the Commission must determine whether the reasons purporting to justify the impugned measure with regard to the applicant's enjoyment of his right to respect for family life are relevant and sufficient under Article 8 (Art. 8) (Eur. Court H.R., Hokkanen judgment, loc. cit., para. 55).        According to the German administrative authorities and courts, Nicole's interests in fully integrating into the family consisting of her mother, her mother's new husband and her step-brother, outweighed the applicant's interest in his daughter keeping her previous surname which reflected her parental link with him.   The Commission notes that the authorities had regard to expert evidence on these issues, and the applicant was heard on the matter and had a full court procedure to challenge the envisaged change of his daughter's surname.   The courts had due regard to the arguments advanced by the applicant who was attached to his daughter and had already refrained from exercising his right of access in order to avoid, in the interests of the child, further conflicts with his divorced wife.   However, the courts also took into account that Nicole had never experienced any family life in co-habitation with the applicant, that her relationship to him was seriously disturbed and that she was attached to Mr. M.   Considering Nicole's psychological situation, especially following the birth of her step-brother, the German authorities concluded that there were particularly important interests justifying the change of her surname.        The Commission finds that these reasons were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8 (Art. 8-2).   The competent national authorities, which are in principle better placed than an international body to evaluate all material before them, did not overstep their margin of appreciation in arriving at the decision to change Nicole's surname. This measure cannot be regarded as disproportionate to the legitimate aim of protecting her interests.        Moreover, the Commission finds that the applicant, assisted by counsel, was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.   The procedural requirements implicit in Article 8 (Art. 8) were therefore complied with (see Eur. Court H.R., W. v. United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para. 64; Olsson judgment of 24 March 1988, Series A no. 130, p. 33, para. 71).        It follows that the interference with the applicant's right to respect for his family life was justified under Article 8 para. 2 (Art. 8-2) of the Convention.        Accordingly, this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant also invoked Article 14 of the Convention, taken in conjunction with Article 8 (Art. 14+8), in respect of the change of his daughter's surname.        Article 14 (Art. 14) of the Convention reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission finds that the applicant failed to substantiate that the German decisions to change his daughter's surname discriminated against him, contrary to Article 14 (Art. 14) of the Convention on any ground specified in this provision.        It follows that this aspect of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   4.    The applicant has further complained under Article 6 (Art. 6) of the Convention about the alleged unfairness of the proceedings regarding the change of his daughter's surname.        Article 6 (Art. 6) of the Convention, so far as relevant, provides:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ..."        The Commission finds that the applicant, assisted by counsel, could duly present his arguments against the envisaged change of his daughter's surname, and was able to submit any material which he saw fit.   As regards the applicant's complaint that no further expert evidence was taken, the Commission refers to the findings of the Administrative Court of Appeal, in particular as to the applicant's failure to lodge a request for the taking of such evidence.        Viewing the domestic judicial proceedings as a whole, the Commission finds no reason to conclude that they were not fair.        It follows that the applicant's complaint about the alleged unfairness of the proceedings is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   5.    With regard to the applicant's submission that the Bavarian Administrative Court of Appeal failed to pronounce its decision publicly, the Commission is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as the applicant failed to   raise this issue in his constitutional complaint with the Federal Constitutional Court.   The applicant has not, therefore, exhausted the remedies available under German law in accordance with Article 26 (Art. 26) of the Convention. It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission        (H. C. KRÜGER)                            (S. TRECHSEL)