Last Updated on September 2, 2020 by LawEuro
FIFTH SECTION
DECISION
Application no. 39017/12
Daniela Nikolaeva FARTUNOVA and Petko Borisov KOLENICHEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 16 June 2020 as a Chamber composed of:
Síofra O’Leary, President,
Gabriele Kucsko-Stadlmayer,
Ganna Yudkivska,
Mārtiņš Mits,
Lәtif Hüseynov,
Lado Chanturia, judges,
Mira Mihaylova Raycheva, ad hoc judge,
and Victor Soloveytchik, Deputy Section Registrar,
Having regard to the above application lodged on 4 June 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having noted that Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court) and that, accordingly, the President of the Fifth Section decided to appoint Mrs Mira Mihaylova Raycheva to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court),
Having deliberated, decides as follows:
THE FACTS
1. The case originated in an application (no. 39017/12) against the Republic of Bulgaria lodged with the Court on 4 June 2012 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Ms Daniela Nikolaeva Fartunova (“the first applicant”) and Mr Petko Borisov Kolenichev (“the second applicant”), who were born in 1981 and 1978 respectively (“the applicants”). They were represented before the Court initially by Ms Margarita Ilieva (who was working for the Bulgarian Helsinki Committee at the time) and afterwards by Mr K. Kanev, from the Bulgarian Helsinki Committee.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov. On 1 December 2017 notice of the application was given to the Government.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants are an unmarried couple who live together as a family with their two children, born in Bulgaria, respectively in 2011 and 2014.
5. The second applicant, the father of the children, recognised his paternity of the children by means of making a declaration before a notary in Bulgaria, in accordance with the Family Code 2011 (Семеен Кодекс) (see paragraph 11 below). In line with both parents’ wishes that their children bear the family name of the mother, at the time of his making the declaration in respect of his paternity of the first child, the father stated before the notary his wish that the child be registered bearing her mother’s family name. The notary refused to certify that declaration, referring to section 14 of the Civil Registration Act (see paragraph 6 below). As a result, the applicant’s first daughter was registered by a civil-status officer (длъжностно лице по гражданското състояние), with whom the declaration acknowledging paternity was deposited thereafter, as bearing her father’s family name, contrary to the parents’ wishes. As Bulgarian law requires that all children born to the same parents carry the same family name, the applicant’s second child, who was likewise recognised by the father, was also registered with the father’s family name, contrary to the wishes of both parents.
B. Relevant domestic law and practice
1. The forming of family names of individuals and married persons and of their children
6. Under section 9 of the Civil Registration Act (“CRA”), the name of Bulgarian citizens born in Bulgaria comprises a first name, a patronymic name and a family name. These three names are listed in the individual’s birth certificate. Under section 14(1) of the CRA, the family name of every individual is the family name or the patronymic name of the father, followed by the suffix -ov/-ev (ов/ев) or –ova/-eva (ова/ева) depending on the person’s sex, unless family-, ethnic- or religion-related traditions of the parents require otherwise.
7. Under section 14(2) of the CRA, the family name at the time of registering a marriage is formed in accordance with the rules of the Family Code 2011 (“the Family Code”). Under Article 12 of the Family Code, at the time of registering their marriage each of the parties involved states whether they wish to keep their own family name, whether they wish to adopt the family name of the other spouse or whether they wish to add their spouse’s family name to their own family name. This means that if a husband opts to adopt the name of his wife or if spouses combine their names, their children will bear the name chosen. Children who have common parents have to be registered with the same family name (section 14(3) of the CRA). The family name of a child whose mother is the only legally established parent is the family name of the mother or the name of the mother’s father (section 15(1) of the CRA).
8. Section 19 of the CRA provides that a change to the first, patronymic or family name of an individual can be made following a request in writing by that individual, provided that his or her name is mocking, disgraceful or publicly unacceptable, as well as in cases when important circumstances so require.
9. Under section 15 of the Judicial System Act, if a court considers that a legal provision is contrary to the Constitution, the court signals this to the Supreme Court of Cassation or the Supreme Administrative Court, which in turn can seize the Constitutional Court on the matter under Article 150 of the Constitution.
2. Recognition of paternity
10. In cases where the father has not acknowledged paternity, the child bears the family name of the mother or the name of the mother’s father (section 15 of the CRA). Where the father has acknowledged paternity after the birth certificate has been drawn up, the names of the child are to be formed in accordance with the rules of the CRA (section 16(1)).
11. Under Article 65 (1) of the Family Code, a man can acknowledge paternity of a child by means of a declaration made in writing and in person before a civil-status officer, or a declaration certified by a notary and deposited with the civil-status officer.
12. Under Article 577 (1) of the Code of Civil Procedure 2007 (“the 2007 Code”), a notary’s refusal of a request to certify a document can be challenged before the relevant regional court. In the event that that court quashes the refusal, the certification is considered to have taken place on the date of the lodging of the request (Article 577 (3) of the 2007 Code).
13. If no written challenge to the acknowledgement of paternity is lodged by the mother, the civil-status officer records the acknowledgement of paternity in the child’s birth certificate (Article 66 (1) of the Family Code). The Supreme Administrative Court has held that refusal by the civil‑status officer to record an acknowledgement of paternity can be challenged before the administrative courts as being a failure of the relevant body to perform an administrative service (see реш. на ВАС № 8945/20.06.2012 по адм. д. № 241/2012; реш. на ВАС № 10937/18.09.2018 по адм. д. № 1617/2018; реш. на ВАС № 9207/18.06.2019 по адм. д. № 10348/2018). At the end of such proceedings the administrative court can return the case to the civil-status officer instructing the latter to take a decision on the individual’s request, in accordance with the relevant legal provisions. If the civil-status officer records the recognition of paternity by entering the father’s family name as the family name of the child in application of section 14 of the CRA, parents who wish to give a different family name to the child can bring proceedings before the civil courts under section 19 of the CRA, asking that the name be changed. In case the civil-status officer refuses to issue a birth certificate altogether, or has issued such a certificate but the applicants dispute the veracity of its content, the applicants can bring a claim before the civil courts under Article 542 of the 2007 Code, asking the court to order that such an act be issued, or under Article 124 (4) of the 2007 Code (тълк. реш. № 5 от 30.05.2017 на ВАС).
3. Relevant Bulgarian case-law
14. The courts have interpreted section 14(1) of the CRA as stipulating imperative rules on how the family names of individuals are to be formed. Thus, in a decision of 2009 the Supreme Court of Cassation (the SCC) held that a change to the family name of a child so that the latter bears the family name of the mother would be contrary to the legal principle in respect of forming the family name of individuals, as provided in an imperative manner by section 14(1) of the CRA. According to that principle, a family name is formed by the family or patronymic name of the father, and not by that of the mother (see реш. № 580 на ВКС от 18.06.2009 г. по гр. д. № 6394/2007). In another decision of 2012, the SCC held that the consistent practice of the courts in respect of section 14(1) of the CRA was categorical and clear in that the family name of every individual was the family or patronymic name of the father; therefore, this did not allow for a child’s family name to be changed by adding the family name of his mother to that of his father (see реш. № 939 на ВКС от 2.07.2012 г. по гр. д. № 44/2012). In a further decision of 2011, the SCC held that, under the law, children bore the family name of the father and it was not compatible with Bulgarian tradition for them to bear the family name of the mother. It was unacceptable under Bulgarian legislation – specifically, the CRA – to arrive at a result that contradicted the legal principles related to the naming of a person, as well as to change people’s names in a way that created confusion or was misleading in respect of that person’s origin (реш. № 1550 на ВКС от 12.12.2011 г. по гр. д. № 1618/2011).
15. In another decision of 2009, the SCC held that the legislature – having taken into consideration the importance of names for individuals, for their family and for society more broadly – had determined, by means of enacting imperative legal provisions, the manner in which names had to be formed. Under section 14 of the CRA, the family name of Bulgarian citizens was to be formed by taking the family or patronymic name of that person’s father. Parents’ divorce or a lack of care on the part of a father towards his child do not fall among the exceptions, allowing a change of name for a child, listed in section 19 of the CRA (реш. № 333 на ВКС от 14.04.2009 г. по гр. д. № 528/2008).
4. Protection against discrimination
16. Article 6 § 2 of the Constitution bans discrimination on the grounds of race, national origin, ethnicity, sex, religion, education, conviction, political affiliation, personal or public status and property status.
17. The Protection Against Discrimination Act (“the PADA”), in force since 2004, regulates protection against all forms of discrimination and contributes to its prevention. The PADA is a lex specialis in relation to general administrative and civil law and it transposes EU anti‑discrimination directives.
18. Section 4 of the PADA prohibits any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party.
19. The authority responsible for ensuring compliance with the PADA and with other statutes laying down equal‑treatment provisions is the Commission for Protection Against Discrimination (“the Commission”). Section 47 of the PADA empowers the Commission to, inter alia, establish that discrimination has taken place, as well as the victim and the perpetrator (section 47(1), PADA), order that the discriminatory treatment be discontinued and that the status quo ante be restored (section 47(2), PADA), impose sanctions or order coercive measures (section 47(3), PADA), or give mandatory instructions (section 47(4), PADA). In the years since the adoption of the PADA, a significant body of case-law has been generated by the Commission deciding on complaints about discrimination.
20. The Commission also issues opinions on the compatibility of draft laws with the PADA’s requirements, as well as recommends the adoption, quashing or amending of acts of legislation (section 47(8), PADA). On 25 May 2018 the Commission issued an opinion in which it held that sections 195, 195a and 195b of the Judicial Act (concerning the obligation of magistrates to declare their membership in any and all organisations) are discriminatory and that it was therefore necessary, on the basis of section 47(8) of the PADA, for it to recommend to the Council of Ministers to prepare and present to Parliament amendments with a view to doing away with the discrimination created by the above-mentioned provisions.
21. The Commission’s decisions are subject to judicial review before the administrative courts (section 68, PADA).
22. A complainant may first lodge a complaint under section 50 of the PADA with the Commission and, if successful, he or she can bring a claim for damages in court, under section 74(1) of the PADA, against the persons or authorities which have caused the damage. If the damage stems from unlawful decisions, actions or omissions of State authorities or officials, section 74(2) of the PADA stipulates that the claim must be brought under the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”).
23. Alternatively, instead of bringing proceedings before the Commission, people who consider that their right to equal treatment stemming from the PADA or from other statutes has been breached can bring a civil claim directly before the courts, seeking declaratory or injunctive relief or an award of damages (section 71(1) of the PADA).
C. Relevant Council of Europe material
24. In Recommendation 1271(1995) of the Parliamentary Assembly of the Council of Europe, the Parliamentary Assembly recommends to the Committee of Ministers of the Council of Europe to ask member States to take appropriate measures to implement strict equality between mother and father in respect of the passing on of a surname to their children.
COMPLAINTS
25. Both applicants complained under Article 8 of the Convention that it had been impossible for them to freely choose the family name for their children.
26. The first applicant also complained under Article 14 in conjunction with Article 8 of the Convention of the impossibility for her, an unmarried woman whose children had been legally recognised by their father, to pass on to those children her own family name – unlike the father, an unmarried man, whose family name had been automatically passed on by law to their common children.
27. In particular, the applicants explained their wish in respect of their children’s family name by reference to the fact that the first applicant (the mother) had no male relatives who could carry on her family name through their offspring and that if she could not pass it on to her own children, there would be no trace of her family’s name in future generations. In addition, the applicants considered that the mother’s family name carried positive connotations, while the father’s family name provoked certain negative associations, which they wished to avoid being attached to their children.
THE LAW
Complaints under Articles 8 and 14 of the Convention
28. The Court notes that the core of both applicants’ complaints is that they have been unable to choose the family name of their common children to the extent that the relevant national legislation directs that children, who have been born out of wedlock and whose father has legally recognised them, must bear the family name of the father, a situation the applicants also claim is discriminatory in respect of the mother.
29. The Court observes that, while Article 8 of the Convention does not contain any explicit provisions on names, as a means of personal identification and of linking a person to a family, a person’s name nonetheless concerns his or her private and family life (see G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001). Therefore, Article 8 of the Convention applies to the complaint about the impossibility for the applicants to choose the family name of their children. As regards Article 14 of the Convention, it has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the substantive Convention provisions (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000‑IV). In view of the finding that Article 8 is applicable in the present case, the Court finds that Article 14, taken in conjunction with Article 8 of the Convention, also applies to the applicants’ related complaint about the automatic privilege which domestic law attaches to the father in terms of the family name of children.
30. Having regard to the circumstances of the present case and bearing in mind that it has the power to decide on the characterisation to be given in law to the facts of a complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers it appropriate to examine the applicants’ grievances from the standpoint of Article 8 in conjunction with Article 14 of the Convention. The relevant parts of these Convention provisions provide:
Art. 8
“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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Art. 14
“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.”
1. The parties’ submissions
(a) The Government
(i) Objections of inadmissibility as a result of non-exhaustion
31. The Government submitted that the applicants had not exhausted the available domestic remedies.
(α) Proceedings under the PADA
Proceedings before the Commission
32. In particular, the applicants had not initiated proceedings under the PADA. More specifically, they could have lodged a complaint with the Commission under section 50 of the PADA. The Government submitted a copy of a judgment delivered in 2017 by an administrative court (Sofia City Administrative Court) which had quashed a decision of the Commission, taken in proceedings under section 50 of the PADA, in which the Commission had found there had been no discrimination (see реш. № 3603 на адм.съд София град от 29.05.2017 г. по адм. д. № 1277/2017). The court had returned the case to the Commission instructing it to fully establish the circumstances complained of and to decide on the complaint in its entirety. The complaint before the Commission had been that several CRA provisions were discriminatory on the grounds of “sex” and “family status”.
33. The Government pointed likewise to decisions of the Supreme Administrative Court (“the SAC”), copies of which they submitted together with their observations, in which that court had held, inter alia, that the bodies entrusted under national law with authority to adjudicate individual complaints about discrimination could conclude that discrimination was present where it stemmed from discriminatory legal provisions. In particular, the SAC had held that conduct implementing a discriminatory legal principle was itself discriminatory (реш. № 2894 от 5.03.2009 на ВАС по адм. д. 15682/2008 г.). In another decision, the SAC had held that the established incompatibility of a provision in the law on scientific ranks with section 4 of the PADA and with Council Directive 2000/78/EC of 27 November 2000 (OJ L 303, 2.12.2000, p. 16–22), establishing a general framework for equal treatment in employment and occupation, meant that applying that provision would breach a legal principle that enjoyed a higher degree of precedence. Consequently, the administrative measures – which were aimed at eliminating the negative consequences of that provision and at preventing other breaches of the principle of equal treatment – were not in breach of the law, contrary to the applicants’ submissions (реш. № 12014 от 18.10.2010 на ВАС по адм. д. 5381/2010 г.).
34. The Government further stated that a finding of discrimination by the Commission could have led to a legislative amendment to the CRA, and thus to the elimination of the source of the alleged discrimination in the present case. The Government submitted in that connection a copy of decision by the SAC upholding a decision of the Commission that, having established that discrimination arose from the legal provisions then in force as well as from the absence of legal provisions creating equal opportunities for parents who cared for children with disabilities and for parents of children without disabilities, directed the Council of Ministers, on the basis of section 76(1)(1) in conjunction with section 47(8) of the PADA, to draw up and submit to Parliament draft laws aimed at providing equally beneficial conditions for both of those categories of parents (реш. № 11111 от 30.08.2012 на ВАС по адм. д. 5665/2011 г.). In that decision the SAC had confirmed that it was the prerogative of the Commission to establish whether discrimination had arisen and to direct the other State bodies to prepare the relevant legislation, with a view to the adoption thereof. The SAC had emphasised that what was important was that the Commission’s decision had been correct as to its findings and that the actions it had recommended were within its remit.
35. Moreover, the Government pointed to two decisions of the Commission, concerning respectively the registering or not of patronymic names of individuals born in or outside Bulgaria, and the different benefits available to families of adopted children of different ages (реш. № 359 по преписка № 280/2015 от 21.09.2016 and реш. № 305 по преписка № 350/2016 от 28.07.2017). In those decisions, the Commission had found that certain legal provisions had been discriminatory and that legal amendments were needed to redress the situation. As a result of those decisions the CRA and the Labour Code had been changed. The reasoning in the bill introducing the amendments in the first case had made an explicit reference to the above-mentioned Commission decision and the amendments had been adopted by Parliament in November 2017. In the second case, the adoption of the amendments had been a direct consequence of the Commission’s recommendations which had been translated into a draft bill by the relevant Ministry and taken before Parliament by the Council of Ministers in an exercise of its legislative initiative.
Proceedings before the courts
36. The Government stated that the applicants could also have lodged a claim, under section 71 of the PADA, before the civil courts, seeking any or all of the following: declaratory relief, injunctive relief, an award of damages. They submitted an example in which such a claim had been successful before the Supreme Court of Cassation (реш. № 948 от 18.12.2009 на ВKС по гр. д. 3097/2008 г., concerning discriminatory provision of electricity supply to subscribers’ homes).
37. The Government further pointed out that a person who had suffered damage as the result of discrimination could submit a claim under section 74 of the PADA and be awarded compensation (see paragraph 22 above).
(β) Proceedings under the CRA
38. It had been likewise open to the applicants to lodge a claim with the relevant domestic court under section 19(1) of the CRA (see paragraphs 8 and 13 above). While the Government could not speculate what the result of such proceedings would have been, in the sense of whether the domestic courts would have granted the applicants’ request for a change to the family name of their children, the court would have examined their request on the merits and adopted a reasoned decision. Importantly, a potential refusal to allow a change to the family name in the type of non-adversarial proceedings available at the national level did not preclude the possibility of the applicants lodging a new request to that effect subsequently.
39. The Government submitted copies of two domestic court decisions in which the applicants had managed to obtain, in proceedings under section 19(1) of the CRA, a ruling allowing them, respectively, to change, in the first case, the name of the applicant’s child upon the divorce of the parents and, in the second case, the applicant’s own family name from that of her father’s patronymic name (which is the middle name of individuals formed from their fathers’ first name) to that of her father’s family name.
(γ) Other grounds for inadmissibility
40. Lastly, the Government submitted that the first applicant’s complaint did not fall within the material scope of the Convention and that the State had a wide margin of appreciation within the context of regulating the naming of individuals. Similarly, as it could not be said that the first applicant had suffered a significant disadvantage, the Government argued that she lacked victim status.
(ii) On the merits
41. The Government stated that the conditions pertaining to the forming of children’s names were based on laws which were sufficiently clear and accessible, and the consequences of whose application were foreseeable. It reiterated its position on the broad margin of appreciation enjoyed by States in deciding on policies related to the forming of family names which extended to considerations relating to public interest.
(b) The applicants
42. The applicants disagreed.
(i) As regards the objections to admissibility on the ground of non-exhaustion
(α) Proceedings under the PADA
43. They pointed out in particular that, despite the Government’s examples of decisions by the SAC finding that discrimination could be established in cases where it stemmed from the law (see paragraph 33 above), the SAC case-law on that question was not consistent. The applicants made reference to two decisions in which the SAC had held that “a legal provision which had not been declared unconstitutional by the Constitutional Court could not be discriminatory” (see реш. на ВАС № 5645/25.04.2014 по адм. д. № 15991/2013) and that “…insofar as these additional possibilities … had been established with a normative act, there could be no discussion at all of a possible inquiry into a discriminatory attitude towards the applicant” (see реш. на ВАС № 6943/2.06.2017 по адм. д. № 1980/2017).
44. Further, the applicants submitted that where discrimination stemmed from the law, the Commission could not issue mandatory directions to Parliament to amend deficient laws. It was true that under section 48(8) of the PADA the Commission could issue opinions on the conformity of draft laws with the legislation on the prevention of discrimination; it could also make recommendations in respect of the adoption, revocation, amendment and supplementing of laws. However, Parliament was not, under Bulgarian law, obliged to act on such recommendations. The SAC had held in that regard that “recommendations [made under section 47(8) of the PADA] in respect of an amendment to a law do not have legally binding force and their execution cannot be enforced through State compulsion” (see опр. на ВАС № 246/10.01.2017 по адм. д. № 13480/2016). There had indeed been cases where individual members of parliament had acted on a recommendation of the Commission and the decisions submitted by the Government (see paragraphs 34 and 35 above) were such an example. However, there had also been cases where not only Parliament but also other State bodies had ignored the recommendations of the Commission that legislation be passed or discriminatory legislation repealed.
(β) Proceedings under the CRA
45. They further submitted that section 19 of the CRA allowed for the possibility to initiate proceedings seeking a change to the name of a person, therefore, the individual requesting such a change must already have had a name. The applicants’ situation was different, as they had from the very start wished to give their children the family name of their mother – not to change names that had already been given to them and with which they disagreed.
46. In addition, section 19(1) of the CRA had not been designed to circumvent the requirements of section 14(1). The latter had been interpreted by the Bulgarian courts as containing imperative rules on how the family names of individuals were to be formed. Finally, the two decisions submitted by the Government had been irrelevant as the situation in those cases had not been comparable to that of the applicants.
(γ) Other grounds of inadmissibility
47. As regards the Government’s argument that the first applicant’s complaints were incompatible ratione materiae with the Convention, the applicants disagreed, pointing to a number of cases in which the Court had dealt with similar issues on the merits, for example: Burghartz v. Switzerland, no. 16213/90, 22 February 1994; Ünal Tekeli v. Turkey, no. 29865/96, ECHR 2004‑X (extracts); Losonci Rose and Rose v. Switzerland, no. 664/06, 9 November 2010); Garnaga v. Ukraine, no. 20390/07, 16 May 2013, and Cusan and Fazzo v. Italy, no. 77/07, 7 January 2014.
48. Lastly, the applicants contested the argument that they had not suffered a significant disadvantage, and pointed out that their application had not been duly considered by a domestic tribunal. In addition, respect for human rights required the examination of the case on the merits, since the alleged violation stemmed from a discriminatory legal provision that applied to all similar cases in Bulgaria, thus rendering the violation a systemic breach of the Convention.
(ii) On the merits
49. According to the applicants, the restrictions applying to the forming of their children’s family names had not been necessary in a democratic society, as they had not responded to a pressing social need nor had they been proportionate to the aim pursued.
2. The Court’s assessment
50. The Court observes that, in cases arising from individual applications, it is not the Court’s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant and whether the applicants’ rights under the Convention had been respected in the particular circumstances (see, for example, Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003‑VIII; Garib v. the Netherlands [GC], no. 43494/09, § 136, 6 November 2017, and, more recently, P. v. Ukraine (dec.), no. 40296/16, 11 June 2019). Accordingly, in the present case the Court is not called upon to examine the compatibility of the domestic law governing the forming of the family name of children with the requirements of the Convention as regards in particular respect for private and family life and the prohibition of discrimination. Instead, it has to address the manner in which it was applied to or affected the applicants. Consequently, the Court has to determine whether the relevant authority’s refusal to entertain the applicants’ request to choose the family name of their children represented a breach of Article 8, read in conjunction with Article 14 of the Convention.
51. The Court notes the Government’s objections to the effect that the applicants had failed to exhaust the available domestic remedies. The Court reiterates in that connection that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies that are available and sufficient in respect of his or her Convention grievances. Article 35 § 1 of the Convention also requires that complaints intended to be made subsequently before the Court should have first been made to the appropriate domestic body – at least in substance. Where an applicant has failed to comply with those requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies. To be considered effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy that is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 72-74 and the authorities cited therein, 25 March 2014).
52. In an earlier case before the Court, Garnaga, cited above, § 31, where the applicant had complained of the impossibility to change her patronymic name, the Court found that – to the extent that it was not clear that an attempt to challenge the situation domestically would have been “completely futile”, the applicant was right in having resorted to a domestic remedy before turning to the Court. Similarly, in Cusan and Fazzo, cited above, concerning a complaint similar to that in the present case where what was at issue was domestic law and practice on the registration of children using their father’s name, the Court accepted the applicants’ lengthy challenge at the national level (proceedings before three levels of civil courts, plus a referral by the highest civil court to the Constitutional Court before adopting a final decision in the applicants’ case) as an adequate exhaustion of domestic remedies before turning to it.
53. In other cases, one of which related to questions of civil status, where the applicants had not attempted remedies domestically, the Court found their applications inadmissible, considering that – while they had very limited chances of success at the national level – the situation was not such as to eliminate all prospects of success (see Charron and Merle Montet v. France (dec.), no. 22612/15, 16 January 2018, and P. v. Ukraine (dec.), cited above).
54. In the present case, as can be seen from the facts and the complaints before the Court, the applicants have not attempted any path of redress at the national level before turning to the Court. Instead, they contend that the remedies identified by the Government would not have been adequate. It thus falls on the Court to establish whether there were remedies at the national level which were not obviously futile and which the applicants were required to exhaust before turning to it.
(a) Proceedings under the PADA
(i) Proceedings before the Commission
55. The Court observes in the first place that, as the Government pointed out, it was open to individuals who considered that they had been discriminated against to complain before the dedicated special body against discrimination, namely the Commission, established under the PADA (see paragraph 32 above).
(α) The Commission’s powers under section 47(3)(4), PADA
56. In the present case the notary, before whom the second applicant had made the declaration recognising his paternity in respect of his first child, orally refused to certify it if the child bore the name of the mother, by referring to the imperative requirements of section 14 of the CRA (see paragraph 6 above). In the circumstances, the second applicant accepted to give his own family name to the child without attempting any domestic proceedings.
57. The Court observes that at the end of proceedings brought under section 50 of the PADA the Commission is empowered to find that there had been discriminatory treatment and to address mandatory instructions to the relevant body at the origin of the discrimination, directing it to redress the situation (section 47(3)(4), PADA). Consequently, it appears to have been open to the applicants to turn to the Commission with their complaint about discrimination.
58. The Commission’s decision could have been subject to judicial review on the merits before the administrative courts (see paragraph 21 above). The Government pointed to domestic case-law of the SAC which had held that any conduct based on a discriminatory legal norm was itself discriminatory (see paragraph 33 above). The possibility of conflicting court decisions, which the Court has accepted as an inherent trait of any judicial system (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 51, 20 October 2011), did not make recourse to the Commission obviously futile.
59. If the Commission had found that a refusal of the relevant domestic authority (notary or civil-status officer), or failure to act on their part, in relation to the second applicant’s recognition of paternity and request that the child bear the mother’s name, represented discriminatory treatment, the applicants could have sought related compensation before the administrative courts (section 74, PADA). While compensation as such would not have redressed the consequences of any discrimination, it is of relevance in addition to the possibility for the Commission to give mandatory instructions to the relevant authority.
(β) The Commission’s powers under section 47(8), PADA
60. In addition, the Court observes that the Commission could have declared these impugned provisions of domestic law discriminatory and issued explicit recommendations to the Council of Ministers, directing it to submit to Parliament proposals for targeted legislative changes (see paragraph 20 above). Admittedly, it does not fall within the Commission’s remit to issue mandatory instructions to Parliament in respect of laws found to contain discriminatory legal provisions. The Court notes, however, that there are examples of recommendations by the Commission having resulted in legislation being adopted by Parliament (see paragraphs 34 and 35 above, and contrast with Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 106, 25 October 2011, where no such examples were provided by the respondent Government). The Court leaves open the question of the effectiveness of such a remedy in cases like this, given the findings below in relation to the CRA.
(ii) Proceedings before the civil courts
61. The Government also pointed to the possibility for the applicants to turn directly to the civil courts, with a claim under section 71 of the PADA, alleging that they had been victims of discrimination. The Government submitted an example of a case in which such a claim had been successful (see paragraph 36 above).
62. Considering the legal provision in question, namely section 71 of the PADA, and the decision submitted by the Government, the Court finds that it appears that it would indeed have been open to the applicants to bring such a claim before the courts. At the end of those proceedings the court could establish that discrimination had taken place, order the relevant authority to redress the situation and award related compensation.
(b) Proceedings under the CRA
63. The Government likewise submitted that the applicants could have brought a claim under section 19(1) of the CRA before the civil courts, seeking to change their children’s name (see paragraph 38 above).
64. The Court observes in that connection that Bulgarian law explicitly provides for the possibility of initiating civil proceedings for a change to the family name of a person (see paragraph 8 above). Moreover, a request to that effect is not constrained by a particular time-limitation period or any res judicata effects of the resulting judicial decision (see paragraph 38 above). It is true that domestic case-law shows that when examining requests for a change in individuals’ family names the courts frequently refer to the imperative character of the relevant legal provisions governing the forming of children’s names (see paragraphs 14 and 15 above). Such requests have frequently been refused.
65. However, despite the judicial practice referred to above, which decisions all predate 2012, the Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Vučković and Others, cited above, § 70, and the authorities cited therein). This principle is particularly relevant in the context of complaints under Article 8, taken alone or in combination with Article 14 of the Convention (see Charron and Merle‑Montet (dec.), cited above). In such cases, the Court has to deal with the complex and delicate question of drawing a fair balance between the different rights involved – in the present case the private-life rights of the applicants and society’s interest in ensuring predictability and stability in civil relations and the registration of individuals’ origins. It is crucial for it to have the benefit of the views of the domestic courts. The latter are in principle better placed than this Court to make such an assessment, and their views are central to the Court’s consideration (ibid.).
66. In the present case the applicants submitted that since they did not agree with Bulgarian legal provisions on the forming of names they should not have been obliged to see their children being given names with which they did not agree with a view thereafter to challenging that decision. However, as indicated previously, the court’s role is not, unlike a national constitutional court, for example, to review domestic legislation in abstracto. As indicated in their submissions before the Court (see paragraph 27 above) the applicants were relying on specific arguments to justify registration of the mother’s name, contrary to the law and standard practice for unmarried couples. Given this fact and the growing body of Convention case-law to which they themselves referred to in their submissions, it was not unreasonable to expect them to challenge the decision of the domestic authority with which they disagreed before a domestic court (see paragraphs 12 and 13 above), as other applicants facing similar domestic legal provisions have done before lodging their applications (see paragraph 52 above), or to seek a change in the name on the basis of the available provisions of the CRA. Section 19 of the CRA provides for the possibility of a name change where important circumstances so require and the applicants have explained that the second applicant’s family name evoked negative connotations (see paragraph 27 above). By omitting to bring any proceedings domestically, the applicants did not test what could fall within the categories provided for under Section 19 of the CRA or give the domestic courts an opportunity to pronounce on the question of the family name of the applicants’ children or explain the refusal of their request.
(c) Further possibilities
67. Finally, the Court observes that a possibility exists in the domestic legal order to seize the Constitutional Court on the question of incompatibility of a legal provision with the Constitution (see paragraph 9 above). Admittedly, this possibility does not belong directly to the applicants, in the absence of a provision for individual constitutional complaints, and the Government have not argued otherwise. It could not be excluded, however, that the question of whether the legal provision on the forming of family names was discriminatory could have reached and been examined by the Constitutional Court, had domestic proceedings been brought domestically in the first place.
(d) Conclusion
68. On the whole, the Court considers that there is no reason for the applicants to insist on the absence of a legal mechanism domestically, given the Court’s findings above as regards the existence of at least one effective remedy which could not have been regarded as completely futile. The applicants have not attempted any remedy and there do not appear to be any exceptional circumstances capable of exempting them from the obligation to do so.
69. In view of the importance of the principle of subsidiarity (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 83, 9 July 2015), the Court finds that the applicants’ complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 July 2020.
Victor Soloveytchik Síofra O’Leary
Deputy Registrar President
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