Judgment 19475/20

Applicant name KÜNSBERG SARRE
Applicant type natural person
Number of applicants 4
Country Austria
Application no. 19475/20
Date 17/01/2023
Judges Tim Eicke, President,
 Gabriele Kucsko-Stadlmayer,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr
Institution Court
Type Judgment
Outcome Art. 8 Violation
ReasonNot necessary (rights and freedoms of others)
Type of privacy Private life; relelational privacy
Keywords Change surname; even if
Facts of the case he present case concerns the applicants’ complaint of a violation of their right to respect for their private and family life under Article 8 of the Convention on account of the removal of a part of surnames of the applicants, namely the prefix “von”, under the Abolition of Nobility Act of 1919, and on account of the refusal to issue a new identity card with that surname to another applicant. Under Article 14 read in conjunction with Article 8 of the Convention, the applicants further complained of discriminatory treatment in so far as other prefixes in surnames such as “van”, “de” and “von der” were excluded from the scope of application of that Act without objective justification.
Analysis As the the question of quality of law, the Court points out that while the provisions in the domestic law might at first sight appear sufficiently precise, a question nonetheless remains as regards the relationship between them, in particular in view of the changes which occurred in domestic case-law from 2014 onwards and which seems to have led to a lack of clarity. This, in turn, seems to have had the effect that the application of the provisions in question was not coherent and not foreseeable in practice, as also demonstrated by the present case. While the Court has certain doubts whether the legislation as interpreted by the domestic courts fulfilled the requirements of “quality of law” within the meaning of the Convention, it considers that it can leave this question open, as the disputed interference was in any event not “necessary in a democratic society” – that is, it was not proportionate to the aim pursued – for the below reasons. The Court concludes the change initiated by the authorities of the applicants’ original surnames after long periods of previously accepted use and, secondly, the refusal to issue an identity card with that surname were not proportionate to the aim pursued by the authorities. Therefore, by discounting the applicants’ interest in keeping a surname with which they identified themselves and which they had borne for (very) long periods of time, the domestic authorities and courts failed to strike a fair balance with the applicants’ right to respect for their private and family life.
Other Article violation? No violation 14 ECHR
Damage awarded The Court notes that the applicants did not submit their claims for just satisfaction within the time allowed for that purpose. Given that the present case does not disclose exceptional circumstances which call for a just-satisfaction award, notwithstanding the absence of a properly made “claim”, the Court is not called upon to make any award under Article 41 of the Convention.
Documents Judgment