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Künsberg Sarre and Others v. Austria, ECtHR (Fourth Section), app. no. 19475/20 and others, 17 January 2023

Künsberg Sarre and Others v. Austria, ECtHR (Fourth Section), app. no. 19475/20 and others, 17 January 2023

The case deals with the interference with private and family life, protected by Art. 8 ECHR, and stems from the ex officio rectification of surnames. The municipality of Graz, Austria, had in fact changed the surnames of the four applicants, removing the prefix “von”, and refused to issue new identity cards identifying the applicants with their original surnames.

In particular, the surnames of all the applicants, linked by family ties, had been automatically changed pursuant to the Abolition of Nobility Act (Adelsaufhebungsgesetz ), which is considered to be an expression of the principle of equality between all persons established following the collapse of the monarchy and the loss of noble privileges: the patronymic of the applicants, however, was not of noble origin and, therefore, according to them, had been unfairly affected by the public administration’s measure. Having exhausted all domestic remedies, the four turned to the Strasbourg Court alleging a violation of Art. 8 ECHR.

 

The Court of Strasbourg reconstructs the meaning of the surname by conceiving it as an instrument that pursues a twofold purpose: on the one hand, it satisfies the public interest of identifying a person and his or her family relationship; on the other hand, it also relates to personality rights, being part of a set of factors that build a person's identity. Any changes, therefore, must be justified in the light of a legitimate aim, of public interest or of compelling social need, to be assessed on a case-by-case and strict case-by-case basis.

The Court finds that the applicants had used their surname for a very considerable period during which they had developed a legally relevant interest in keeping it in use as a medium for identifying family, kinship ties and personal identity. This interest should have been duly taken into account by the competent national authorities, which did not correctly balance the egalitarian rationale of the Abolition of Nobility Act and the applicants’ enjoyment of their right to a name under Article 8 ECHR.

To conclude, there has been a violation of Art. 8 ECHR.

 

(Commenti by Tania Pagotto)