Annex
The author's of the communication are A.R. Coeriel and M.A.R. Aurik, two Dutch citizens residing in Roermond, the Netherlands. They claim to be victims of a violation by the Netherlands of articles 17 and 18 of the International Covenant on Civil and Political Rights. The background:
The author's have adopted the Hindu religion and state that they want to study for Hindu priests ('pandits') in India. They requested the Roermond District Court (Arrondissements Rechtbank) to change their first names into Hindu names, in accordance with the requirements of their religion. This request was granted by the Court on 6 November 1986.
Subsequently, the author's requested the Minister of Justice to have their surnames changed into Hindu names. They claimed that for individuals wishing to study and practice the Hindu religion and to become Hindu priests, it is mandatory to adopt Hindu names. By decisions of 2 August and 14 December 1988 respectively, the Minister of Justice rejected the author's' request, on the ground that their cases did not meet the requirements set out in the Guidelines for the change of surname’ (Richtlijnen voor eslachtsnaamwijziging 1976). The decision further stipulated that a positive decision would have been justified only by exceptional circumstances, which were not present in the author's' cases. The Minister considered that the author's' current surnames did not constitute an obstacle to undertake studies for the Hindu priesthood, since the authors would be able to adopt the religious names given to them by their Guru upon completion of their studies, if they so wished. 2.35 1 1 1 29 2 643 2164 96 39 96.768494 The authors appealed the Minister's decision to the Council of State (Raad van State), the highest administrative tribunal in the Netherlands and claimed inter alia that the refusal to allow them to change their names violated their freedom of religion. On 175 1 1 1 32 8 1811 2325 228 39 96.720634 October 1990, the Council dismissed the author's' appeals. It considered that the authors had not shown that their interests were such that it justified the changing of surnames where the law did not provide for it. In the opinion of the Council, it was not shown that the author's' surnames needed to be legally changed to give them the chance to become Hindu priests; in this connection, the Council noted that the authors were free to use their Hindu surnames in public social life. 2.45 1 1 1 39 2 646 2776 61 35 94.790047 On 65 1 1 1 39 4 818 2772 263 48 96.137390 February 1991, the authors submitted a complaint to the European Commission of Human Rights. On 25 1 1 1 40 7 1537 2825 129 50 95.697762 July 1992, the European Commission declared the author's' complaint under articles 95 1 1 1 41 7 1753 2880 95 39 96.039474 and 145 1 1 1 41 9 1976 2880 60 37 96.503113 of the Convention inadmissible as manifestly ill-founded, as they had not established that their religious studies would be impeded by the refusal to modify their surnames. The complaint: 3. The authors claim that the refusal of the Dutch authorities to have their current surnames changed prevents them from furthering their studies for the Hindu priesthood and therefore violates article 185 1 1 1 47 9 2265 3374 61 39 96.054504 of the Covenant. They also claim that said refusal constitutes unlawful or arbitrary interference with their privacy. The State party's observations and the author's' comments thereon: 4.15 1 1 1 51 2 649 3769 62 48 96.744484 By submission of 75 1 1 1 51 6 1258 3766 128 50 95.013672 July 1991, the State party replies to the Committee's request under rule 915 1 1 1 52 5 1238 3822 61 39 95.797722 of the rules of procedure to provide observations relevant to the question of the admissibility of the communication in so far as it might raise issues under articles 175 1 1 1 54 9 1888 3930 93 39 95.988670 and 185 1 1 1 54 11 2121 3930 60 38 96.284767 of the Covenant.
The State party submits that Dutch law allows the change of surnames for adults in special circumstances, namely when the current surname is indecent or ridiculous, so common that it has lost its distinctive character or, in cases of Dutch citizens who have acquired Dutch nationality by naturalization, not Dutch-sounding. The State party submits that outside these categories, change of surname is only allowed in exceptional cases, where the refusal would threaten the applicant's mental or physical well-being.
With regard to Dutch citizens belonging to cultural or religious minority groups, principles have been formulated for the change of surname. One of these principles states that a surname may not be changed if the requested new name would carry with it cultural, religious or social connotations.
The State party submits that the author's in the present case have been Dutch citizens since birth and grew up in a Dutch cultural environment. Since the author's' request to change their surnames had certain aspects comparable to those of religious minorities, the Minister of Justice formally sought an opinion from the Minister of Internal Affairs. This opinion was unfavourable to the author's, as the new names requested by them were perceived as having religious connotations.
The State party states that the author's are free to carry any name they wish in public social life, as long as they do not carry a name that belongs to someone else without the latter's permission. The State party submits that it respects the author's' religious convictions and that they are free to manifest their religion. The State party further contends that the fact that the author's allegedly are prevented from following further religious studies in India because of their Dutch names, cannot be attributed to the Dutch government, but is the consequence of requirements imposed by Indian Hindu leaders.
As regards the author's' claim under article 17 of the Covenant, the State party contends that the author's have not exhausted domestic remedies in this respect, since they did not argue before the Dutch authorities that the refusal to have their surnames changed constituted an unlawful or arbitrary interference with their privacy.
In conclusion, the State party argues that the communication is inadmissible as being incompatible with the provisions of the Covenant. It further argues that the author's have failed to advance a claim within the meaning of article 2 of the Optional Protocol.
In their reply to the State party's submission, the author's emphasize that it is mandatory to have a Hindu surname when one wants to study for the Hindu priesthood and that no exceptions to this rule are made. In this connection, they submit that if the surname is not legally changed and appears on official identification documents, they cannot become legally ordained priests. In.support of their argument, the author's submit declarations made by two pandits in England and by the Swami in New Delhi.
One of the author's, Mr. Coeriel, further submits that, although a Dutch citizen by birth, he grew up in Curacao, the United States of America and India, and is of Hindu origin, which should have been taken into account by the State party when deciding on his request to have his surname changed.
The author's maintain that their right to freedom of religion has been violated, because as a consequence of the State party's refusal to have their surnames changed, they are now prevented from continuing their study for the Hindu priesthood. In this context, they also claim that the State party's rejection of their request constitutes an arbitrary and unlawful interference with their privacy.
During its 48th session, the Committee considered the admissibility of the communication. With regard to the author's' claim under article 18 of the Covenant, the Committee considered that the regulation of surnames and the change thereof was eminently a matter of public order and restrictions were therefore permissible under paragraph 3 of article 18. The Committee, moreover, considered that the State party could not be held accountable for restrictions placed upon the exercise of religious offices by religious leaders in another country. This aspect of the communication was therefore declared inadmissible.
The Committee considered that the question whether article 17 of the Covenant protects the right to choose and change one's own name and, if so, whether the State party's refusal to have the author's' surnames changed was arbitrary should be dealt with on the merits. It considered that the author's had fulfilled the requirement under article 5, paragraph 2(b), of the Optional Protocol, noting that they had appealed the matter to the highest administrative tribunal and that no other remedies remained. On 8 July 1993, the Committee therefore declared the communication admissible in so far as it might raise issues under article 17 of the Covenant. The State party's submission on the merits and the author's' comments thereon:
The State party, by submission of 24 February 1994, argues that article 17 of the Covenant does not protect the right to choose and change one's surname. It refers to the travaux préparatoires, in which no indication can be found that article 17 should be given such a broad interpretation, but on the basis of which it appears that States should be given considerable freedom to determine how the principles of article 17 should be applied. The State party also refers to the Committee's General Comment on article 17, in which it is stated that the protection of privacy is necessarily relative. Finally, the State party refers to the Committee's prior jurisprudence’ and submits that, whenever the intervention of authorities was legitimate according to domestic legislation, the Committee has only found a violation of article 17 when the intervention was also in violation of another provision of the Covenant.
Subsidiarily, the State party argues that the refusal to grant the author's a formal change of surname was neither unlawful nor arbitrary. The State party refers to its submission on admissibility and submits that the decision was taken in accordance with the relevant Guidelines, which were published in the Government Gazette of 9 May 1990 and based on the provisions of the Civil Code. The decision not to grant the author's a change of surname was thus pursuant to domestic legislation and regulations.
As to a possible arbitrariness of the decision, the State party observes that the regulations referred to in the previous paragraph were issued precisely to prevent arbitrariness and to maintain the necessary stability in this field. The State party contends that it would create unnecessary uncertainty and confusion, in both a social and administrative sense, if a formal change of name could be effected too easily. In this connection, the State party invokes an obligation to protect the interests of others. The State party submits that in the present case, the author's failed to meet the criteria that would allow a change in their surname and that they wished to adopt names which have a special significance in Indian society. Granting a , See the Committee's Views with regard to communications No. 35/19785 1 9 1 2 2 734 3905 620 57 88.570801 (Aumeeruddy-Cziffra v. Mauritius, Views adopted on 95 1 9 1 2 9 2473 3899 164 53 96.570724 April 1981) and No. 74/19805 1 9 1 3 3 871 3963 283 46 93.109116 (Estrella v. Uruguay, Views adopted on 295 1 9 1 3 10 2261 3959 164 39 96.474487 March 1983).
In their comments on the State party's submission, the author's contest the State party's view that article 17 does not protect their right to choose and change their own surnames. They argue that the rejection of their request to have their surnames changed, deeply affects their private life, since it prevents them from practising as Hindu-priests. They claim that the State party should have provided in its legislation for the change of name in situations similar to that of the author's, and that the State party should have taken into account the consequences of the rejection of their request.
During its 5lst session, the Committee began its examination of the merits of the communication and decided to request clarifications from the State party with respect to the regulations governing the change of names. The State party, by submission of 3 October 1994, explains that the Dutch Civil Code provides that anyone desiring a change of surname can file a request with the Minister of Justice. The Code does not specify in what cases such a request should be granted. The ministerial policy has been that a change of surname can only be allowed in exceptional cases. In principle, a person should keep the name which (s)he acquires at birth, in order to maintain legal and social stability.
To prevent arbitrariness, the policy with respect to the change of surname has been made public by issuing ‘Guidelines for the change of surname'. The State party recalls that the guidelines indicate that a change of surname will be granted when the current surname is indecent or ridiculous, so common that it has lost its distinctive character, or not Dutch-sounding. In exceptional cases, the change of surname can be authorized outside these categories, for instance in cases where the denial of the change of surname would threaten the applicant's mental or physical well-being. A change of surname could also be allowed if it would be unreasonabie to refuse the request, taking into account the interests of both the applicant and the State. The State party emphasizes that a restrictive policy with regard to the change of surname is necessary in order to maintain stability in society.
The Guidelines also contain rules for the new name which an applicant will carry after a change of surname has been allowed. In principle, a new name should resemble the old name as much as possible. If a completely new name is chosen, it should be a name which is not yet in use, which sounds Dutch and which does not give rise to undesirable associations (for instance, a person would not be allowed to choose a surname which would falsely give the impression that he belongs to the nobility). As regards foreign surnames, the Government's policy is that it does not wish to interfere with the law of names in other countries, nor does it wish to appear to interfere with cultural affairs of another country. This means that the new name must not give the false impression that the person carrying the name belongs to a certain cultural, religious or social group. In this sense, the policy with regard to foreign names is similar to the policy with regard to Dutch names.
The State party submits that the applicant's request is heard by the Minister of Justice, who then adopts his decision in the matter. If the decision is negative, the applicant can appeal to the independent judiciary. All decisions are being taken in accordance to the policy as laid down in the Guidelines. This policy is departed from in rare cases only, in order to prevent arbitrariness.
As regards the present case, the State party explains that the author's' request for a change of surname was refused, because it was found that no reasons existed to allow an exceptional change of surname outside the criteria laid down in the Guidelines. In this context, the State party argues that it Annex English has not been established that the author's cannot follow the desired religious education without a change of surname. Moreover, the State party argues that, even if a change of surname would be required, this condition is primarily a consequence of rules established by the Hindu-religion, and not a consequence of the application of the Dutch law of names. The State party also indicates that the desired names would identify the author's as members of a specific group in Indian society, and are therefore contrary to the policy that a new name should not give rise to cultural, religious or social associations. According to the State party, the names also conflict with the policy that new names should be Dutch-sounding. Issues and proceedings before the Committee:
The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
The first issue to be determined by the Committee is whether article 17 of the Covenant protects the right to choose and change one’s own name. The Committee observes that article 17 provides, inter alia, that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. The Committee considers that the notion of privacy refers to the sphere of a person's life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone. The Committee is of the view that a person’s surname constitutes an important component of one’s identity and that the protection against arbitrary or unlawful interference with one’s privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one’s own name. For instance, if a State were to compel all foreigners to change their surnames, this would constitute interference in contravention of article
The question arises whether the refusal of the authorities to recognize a change of surname is also beyond the threshold of permissible interference within the meaning of article 17.
The Committee now proceeds to examine whether in the circumstances of the present case the State party’s dismissal of the author's’ request to have their surnames changed amounted to arbitrary or unlawful interference with their privacy. It notes that the State party’s decision was based on the law and regulations in force in the Netherlands, and that the interference can therefore not be regarded as unlawful. It remains to be considered whether it is arbitrary.
The Committee notes that the circumstances in which a change of surname will be recognised are defined narrowly in the Guidelines and that the exercise of discretion in other cases is restricted to exceptional cases. The Committee recalls its General Comment on article 17, in which it observed that the notion of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and | objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. Thus, the request to have one’s change of name recognised can only be refused on grounds that are reasonable in the specific circumstances of the case.
In the present case, the author's’ request for recognition of the change of their first names to Hindu names in order to pursue their religious studies had been granted in 1986. The State party based its refusal of the request also to change their surnames on the grounds that the author's had not shown that the changes sought were essential to pursue their studies, that the names had religious connotations and that they were not ‘Dutch sounding’. The Committee finds the grounds for so limiting the author's’ rights under article 17 not to be reasonable. In the circumstances of the instant case the refusal of the author's’ request was therefore arbitrary within the meaning of article 17, paragraph 1, of the Covenant.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 17 of the Covenant.
Pursuant to article 2 of the Covenant, the State party is under an obligation to provide Mr. Aurik and Mr. Coeriel with an appropriate remedy and to adopt such measures as may be necessary to ensure that similar violations do not occur in the future.
The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's Views.
Individual opinion by Mr. Nisuke Ando (dissenting) I do not share the State party’s contention that, in examining a request to change one’s family name, elements such as the name’s religious connotations or non-Dutch sounding intonation should be taken into consideration. However, I am unable to concur with the Committee’s Views on this case for the following three reasons: (1) Despite the author's’ allegation that the requested change of the author's’ family name is an essential condition for them to practice as Hindu priest, the State party argues that it has not been established that the author's cannot follow the desired religious education without the change of surname (see paragraph 9.5), and apparently, on the basis of that argument, the author's’ claim has been rejected by the European Commission of Human Rights. Since the Committee is not in the possession of any information other than the author's’ allegation for the purpose of ascertaining the relevant facts, I cannot conclude that the change of their family names is an essential condition for them to practice as Hindu priests. (2) Article 18 of the Covenant protects the right to freedom of religion and article 17 guarantees everyone's right to the protection of the law against arbitrary or unlawful interference with his privacy. However, in my opinion, it may be doubted whether the right to the protection of one’s privacy combined with the freedom of religion automatically entails the right to change one’s family name. Surnames carry important social and legal functions to ascertain one’s identity for various purposes such as social security, insurance, license, marriage, inheritance, election and voting, passport, tax, police and public records, and so on. In fact, the Committee recognizes that the regulation of surnames and the change thereof was essentially a matter of public order and restrictions were therefore permissible under paragraph 35 1 7 1 12 5 1467 2456 59 36 96.205307 of article 18 (see paragraph 6.1). Moreover, it is not impossible to argue that the request to change one’s family name is a form of manifestation of one’s religion, which is subject to the restrictions enumerated in paragraph 3 of article 18. (3) I do not consider that a family name belongs to an individual person alone, whose privacy is protected under article’ 17. In the Western society a family name may be regarded only as an element to ascertain one’s identity, thus replaceable with other means of identification such as a number or a cipher. However, in other parts of the world, names have a variety of social, historical and cultural implications, and people do attach certain values to their names. This is particularly true with family names. Thus, if a member of a family changes his or her family name, it is likely to affect other members of the family as well as values attached thereto. Therefore, it is difficult for me to conclude that the family name of a person belongs to the exclusive sphere of privacy which is protected under article 17. Nisuke Ando Annex English
Individual opinion by Mr. Kurt Herndl (dissentin I regret that I am unable to concur in the Committee’s finding that by refusing to grant the author's a change of surname, the Dutch authorities breached article 17 of the Covenant. (a) The States party’s action seen from the general content and scope of article 17 Article 17 is one of the more enigmatic provisions of the Covenant. In particular, the term privacy would seem to be open to interpretation. What does privacy really mean? In his essay on Global protection of Human Rights - Civil Rights Lillich calls privacy a concept to date so amorphous as to preclude its acceptance into customary international law.? He adds, however, that in determining the meaning of privacy stricto sensu limited help can be obtained from European Convention practice. And there he mentions that i.a. the use of name was suggested as being part of the concept of privacy. This is, by the way, a quote taken from Jacobs, who with reference to the similar provision of the European Convention (article 8) asserts that “the organs of the Convention have not developed the concept of privacy".’ What is true for the European Convention is equally true for the Covenant. In his commentary on the Covenant Nowak states that article 17 was the subject of virtually no debate during its drafting and that the case law on individual communications is of no assistance in ascertaining the exact meaning of the word.‘ It is therefore not without reason that the State party argues that article 17 would not necessarily cover the right to change one’s surname (see para. 7.1 of the Views). The Committee itself has not really clarified the notion of privacy either in its General Comment on article 17 where it actually refrains from defining that notion. In its General Comment the Committee attempts to define all the other terms used in article 17 such as family, home, unlawful and arbitrary. It further refers to the protection of personal honour and reputation also mentioned in article 17, but it leaves open the definition of the main right enshrined in that article, i.e. the right to privacy. While it is true that the Committee, in its General Comment, refers in various instances to private life and gives examples of cases in which States must refrain from interfering with specific aspects of private life, the question whether the name of a person is indeed protected by article 1’ and, in particular, whether in addition there is a right to change one’s name, is not brought up at all in the General Comment. I raise the above issues to demonstrate that the Committee is not really on safe legal ground in interpretating article 17 as it does in the present decision. I do, however, concur with the view that one’s name is an important part of one’s identity, the protection of which is central to article 17. Nowak is therefore correct in saying that privacy protects the special, 2 Richard B. Lillich, Civil Rights, in: Human Rights in International Law, Legal and Policy Issues, ed. Th. Meron (1984), p. 148.
Francis G. Jacobs, The European Convention on Human Rights (1975), p. 126. ‘ Nowak, CCPR Commentary (1993), p.294, section 15.
Nowak, loc. cit., p. 294, section 17.