Applicant name Hagemann-Husler
Applicant type Natural person
Country Switzerland
Decision no.8042/77
Institution Commission
Type Decision
Outcome Art. 8 Inadmissible
Reason No interference
Type of privacy Private life
Keywords Right to name; right to personality; even if.
Facts of the case Woman wants to join local elections under her maiden name, not her husbands name, but is not allowed to do so, only under a combination of both.
Analysis The Commission stresses that the right to join elections is provided for by Article 3 of the First Protocol, but that Switzerland has not ratified that Protocol. Thus, the applicant has to rely on Article 8 ECHR. Interestingly, whil later the Commission and the Court have found that the right to privacy includes the broader right to personality, in this case, the Commission does not want to issue judgement on the matter. ‘It is of course a question whether the use of a patronymic name for the purpose of standing in a parliamentary election comes within the sphere of “private life” . The applicant, for her part, interprets Article 8 broadly enough to derive from it a general right to protection of personality. This question of interpretation can however remain unsettled.’

Because the applicant is allowed to join the elections under both her husbands in combination with her maiden name, the Commission stresses that her fear, that she will not be recognised by people that know her by her maiden name, is unfounded. There is, consequently, no interferernce of Article 8 ECHR.

The applicant also invokes ARticle 12 ECHR, but the Commission finds that ‘the applicant is married and has in no way shown that the Swiss authorities placed obstacles of any kind in the way of her marriage.’ Apprently, it does not find that the obligation to adopt in whole or in part the name of the husband is something that falls under the protective scope of the Convtion

Matters become a bit unclear when the Commission turns to the complaint of applicant under ARticle 14 ECHR. Under standard jurisprudence, this provision can only be invoked in combination with another (material) provision under the Convention. The Commission seems to assess this claim in substance, which is why it must be presumed that it does consider that the claim does fall under the material scope of either the right to privacy or the right to marry and found a family, although it does not specify this matter. Alternatively, this discussion is linked to the ‘even if’ reasoning of the Commission under Article 8 ECHR, stressing that it will does determine whether there is a right to name/personality under ARticle 8 ECHR, as there has been no interference with the potential interest in any case. As to the substance of the claim, the Commission finds that the distinction in Swiss law is objective, serves a legitimate aim and is proportionate.
Documents Decision