ECHR judgment of June 25, 2019 in the case of Aktash and Aslaniskender v. Turkey (Akta and Aslaniskender v. Turkey) (applications Nos. 18684/07 and 21101/07).
In 2007, the applicants were assisted in preparing applications. Subsequently, the applications were consolidated and communicated by Turkey.
In the case, the applications about the refusal to change the name only on the grounds that the new name was not Turkish was successfully considered. The case contained a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The first applicant is a Turkish national of Assyrian descent. He received Swiss citizenship under the surname Amno (Assyrian surname). A Swiss passport was issued to him on this surname.
The first applicant went to court with the aim of changing his surname Aktas to Amno, claiming that: i) he was of Assyrian origin, and he, like his family, were known under the surname Amno; ii) his brother was already allowed to change his last name; iii) the presence of two passports issued for different surnames led to practical problems in everyday life. The court sent a request to the Turkish Language Institute in order to find out if the name of Amno was Turkish. An answer was received from this institute that this surname did not belong to surnames of Turkish origin. On this basis, the applicant was refused a change of family name.
The second applicant is a Buddhist. In his Turkish identification card, this religion is indicated instead of Islam. He went to court to change his name and surname to Padmapanys Leonalexandros, citing his religious beliefs, personal freedom, the right to freedom of religion and the right to freedom of expression.
An expert in India indicated that the name was taken from Sanskrit appropriate for Buddhist worship, but the surname was a simple literal translation of the applicant's old surname into Greek. Then the second applicant changed his requirements and requested that he be registered under the Sanskrit name Paramabindu. The court satisfied the requirements of the second applicant, but the decision was quashed as regards the last name: the second applicant could only change his name.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. The refusal of the Turkish authorities to allow the applicants to change their surnames, which relates to their family and personal life, should be considered in terms of the positive obligations of the state in this area.
Recognizing that there may be reasonable reasons for a person’s desire to change his name, the Court has also indicated that reasons related to the public interest may legitimately limit such an opportunity, for example, to allow for accurate registration of the population or to preserve personal identification and unite carriers of a certain surname within one family. The margin of appreciation granted to the state authorities in the field of regulation of human rights in this area is wide.
In the present case, the Turkish courts refused to change the family name of the applicants for one single reason: according to Article 3 of Law No. 2525 and Article 5 of the Rules on Family Names, words that did not come from the “Turkish language” could not be used as family names.
The Court observes that the controversial refusal was based only on the second of the above provisions, since only it contained provisions in that regard. The text of Article 3 of Law No. 2525 did not provide for a general ban on having surnames that are not Turkish; it forbade only the use of the names "foreign races and nationalities". Even taking into account the possible interpretation of this expression, it seems to be different from the previous one.
The Court must verify whether Turkish law is flexible enough to meet the needs of those who request a change of surname. In this context, the Turkish courts should prove that they have matched the interests involved.
However, it follows from the motivating parts of the judgments of the Turkish courts that they applied the provisions of the law and the regulation in a clearly formal way: they did not take into account the arguments and the specific personal situation of each of the applicants and did not compare the interests involved in the case.
It was not proven how the change of surnames by applicants to those surnames that did not come from the Turkish language could to some extent affect the public interest. This is all the more obvious in the case of the first applicant, since a positive decision was made in respect of his brother on the same issue.
Consequently, the Turkish authorities did not ensure the establishment of a fair balance between the competing interests of the applicants and society as a whole.
There was a violation of Article 8 of the Convention (unanimously) in the case.
In application of Article 41 of the Convention. The Court awarded each of the applicants 1,500 euros (EUR) in respect of non-pecuniary damage.