“What’s in a name?” – again: Aktaş and Aslaniskender

The issue of legal impediments to changing one’s name has come up once more at Strasbourg.

Background

In Aktaş and Aslaniskender v Turkey [2019] ECHR 484 [in French] Mr Aktaş was an Assyrian with Turkish and Swiss dual nationality. He obtained Swiss nationality in 1995, stating his surname as “Amno” (an Assyrian name). He was issued with a Swiss passport under that surname – and from 1995 had held two passports under two different names. In October 2005 he applied to the Midyat Regional Court to change his surname from “Aktaş” to “Amno”, explaining that he was Assyrian and that he and his family were known by that name. He added that his brother had been allowed to change his surname to Amno by the same tribunal in 2002. However, he was refused permission on the grounds that “Amno” was not a Turkish surname and that, under Law no. 2525, foreign names could not be chosen as surnames. Furthermore, Article 5 of the Regulations on surnames provided that only Turkish-language names could be adopted as surnames. Mr Aktaş appealed unsuccessfully.

Mr Aslaniskender was a Buddhist. He succeeded in getting the “religion” entry on his identity card changed from “Islam” to “Buddhism”, and in 2002 he applied to the Ankara Regional Court to change his forename and surname to “Padmapanys Leonalexandros”, as more appropriate to his religious beliefs. That court dismissed his application on the grounds that it was inconsistent with Law no. 403 on Turkish nationality. On appeal, the Court of Cassation quashed the decision on grounds of procedural defect. The Ankara Regional Court resumed the proceedings refused to allow him to change his name to ‘Padmapani Leonalexandros”, on the grounds that “Leonalexandros” had been translated from Turkish into Greek. He subsequently applied to the court to change his name to “Padmapani Paramabindu” and in 2004 the court allowed the request. However, the Civil Status Registry and the Ankara Public Prosecutor appealed, and the Court of Cassation upheld his request to change his forename but set aside the decision to allow him to change his surname, on the grounds that it was unlawful to choose foreign names as surnames. In September 2005, the Ankara Regional Court decided to change his forename to “Padmapani” but dismissed his request to change his surname. The Court of Cassation dismissed his request for rectification of the judgment.

The arguments

The applicants complained that the refusal of the national authorities to change their surnames on the civil status register was an infringement of their rights under Article 8 (private and family life) and Article 14 ( discrimination) ECHR.

The Government responded that the applicants had not demonstrated any infringement of their Article 8 rights because the refusal by the national courts to authorise the change of surnames was not an interference. The ECtHR’s case-law distinguished between making it obligatory to change one’s name – which would amount to interference – and a refusal to allow an individual to adopt a new name. And even it the Court concluded that there had been an interference, that interference would be justified. The choice of surnames was not entirely a matter of personal preference; and states parties enjoyed a wide margin of appreciation in that respect. The legislation requiring surnames to be Turkish was justified by the public interest in, for example, the immutability of the surnames, the accuracy of the birth registers and the identification of individuals and their families [41].

The judgment

The Court reiterated that the Convention did not contain an explicit provision about names; however, a person’s name was nonetheless concerned with private and family life as a means of personal identification and attachment to a family. That the state and society had an interest in regulating its use was not sufficient to exclude the issue of the name of a person from the field of private and family life. The applications were therefore within the scope of Article 8 [42]. While recognizing that there might be good reasons for an individual to want to change his or her name, the Court considered that legal restrictions on such a possibility might be justified in the public interest: for example, to safeguard personal identification or to connect the bearers of a given name to a family – and states parties enjoyed a wide margin of appreciation in the matter [45].

The present cases were about the refusal of the national courts to allow the applicants to change their surnames and had not raised any issue about their first names. The domestic courts had rejected the applicants’ claims solely because, in accordance with Article 3 of Law No 2525 and Article 5 of the Regulation on surnames, names that were not Turkish could not be chosen as family names. The wording of Article 3 of Law 2525 did not provide for a general prohibition on names that are not Turkish. According to that provision, the Turkish legislature had prohibited, inter alia, “the use of foreign names of race and nation”, but not names which are not of Turkish-language origin – which appears to be different. The prohibition on names not of Turkish-language origin was in Article 5 of the Regulations on surnames, which excluded the possibility of adopting non-Turkish surnames [46].

National authorities were, in principle, better placed to assess the level of inconvenience attributable to the use of one name over another in their own societies. To determine whether there had been a violation in a given case, the Court had to consider whether the application of the legislation was sufficiently flexible for the needs of persons wishing to change their names – but the national courts had to show that they had weighed the interests at stake. In this case, the national courts had not made any assessment of the interests at stake: they had carried out a purely formalistic examination of the legislative and regulatory texts without having taken into account the specific and personal situations of the interested parties or their arguments and without balancing the interests at stake [47]. Furthermore, the Government had not demonstrated how changing the names of the applicants to non-Turkish ones was likely to disturb the public interest. That was all the more evident in the case of the first applicant, whose brother had been allowed to change his surname to “Amno” [48].

The Turkish authorities had failed to strike a fair balance between the competing interests of the applicants and of society as a whole. Accordingly, there had been a violation of Article 8  [49]. It was not necessary separately to examine whether there had also been a violation of Article 14.

Cite this article as: Frank Cranmer, "“What’s in a name?” – again: Aktaş and Aslaniskender" in Law & Religion UK, 26 June 2019, https://lawandreligionuk.com/2019/06/26/whats-in-a-name-again-aktas-and-aslaniskender/

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