Refusal to register a new name for being uncommon: ECtHR finds no violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms

The case of SAHINER v. AUSTRIA (no. 21669/21) concerned the refusal of the Austrian authorities to allow the applicant to officially change her name from Özlem to Lemilia. According to Austrian law, a name change is not permitted if the chosen name is not a common name. The applicant argued that the name Lemilia, which she used in her private life and among her friends, was an important part of her personal identity, and the refusal to officially register it violated her right to respect for private life and was discriminatory.

The ECtHR recalled that the name plays a key role in the identification of a person, and legal restrictions on its change can be justified by the public interest, for example, for the accurate registration of the population or the protection of means of identification.

The process of assigning, recognising and using names is an area in which national characteristics are most strongly manifested and is influenced by a variety of historical, linguistic, religious and cultural factors. Thus, States have a wide margin of appreciation in this area.

Given the lack of consensus among European countries on this issue, as well as the wide margin of appreciation granted to States, the ECtHR noted that, as a rule, States do not have a general positive obligation to allow individuals to change their name.

The ECtHR also noted that the circumstances of this case could not be compared with the circumstances of other name change cases, which, as confirmed by previous practice, fell within the scope of the State's positive obligations. In the present case, the chosen name was not recognised in another jurisdiction and it was not claimed that the authorities had objections to names in a foreign language. The ECtHR reiterated that the refusal to register a name does not prevent its use by relatives and friends. In view of this, the ECtHR did not consider that the special circumstances of the applicant's case raised the issue of non-compliance with the right to privacy under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The ECtHR reiterated that in order to raise an issue under Article 14 of the Convention, there must be a difference in the treatment of persons in a similar or substantially similar position when exercising the rights and freedoms guaranteed by it. The burden of proving the comparability of the situation was on the applicant, but she did not prove why persons born abroad with the name Lemilia were in a similar position. The ECtHR also noted that naturalisation and name change are different procedures, so it agreed with the Government that the applicant was not in a comparable position. The complaint under Article 14 was rejected as manifestly ill-founded.

For a more detailed description of this judgment, please refer to the following reviews of the ECtHR case law.

The official text of the judgment SAHINER v. AUSTRIA is available on the website of the European Court of Human Rights: https://hudoc.echr.coe.int/?i=001-243364.