1. BURGHARTZ v.

SWITZERLAND

Facts: The applicants, who are Swiss nationals. They were married in Germany in 1984. Mrs.
Burghartz has German citizenship. In accordance with German law, they chose the wife’s
surname, "Burghartz", as their family name; the husband availed himself of his right to put his
own surname in front of that and thus call himself "Schnyder Burghartz".

The Swiss registry office having recorded "Schnyder" as their joint surname, the couple applied
to substitute "Burghartz" as the family surname and "Schnyder Burghartz" as the husband’s
surname. But the cantonal government of Basle Rural turned down the application.

The applicants made a further application to the cantonal Department of Justice of Basle Urban,
following an amendment to the Civil Code as regards the effects of marriage but their
application was again refused, on the ground that they had not pointed to any serious
inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of
any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to
couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife
could put her own surname before the family name.

The applicants then lodged an appeal with the Federal Court in which they complained of,
among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and
Article 4 para. 2 of the Federal Constitution.

Issues: Can the wife’s surname (Burghartz) be used as the Family name?
Can the husband avail himself a right to put his own surname in front of the wife’s
surname?

Ruling: The Court ruled affirmative on the two issues.

RELEVANT DOMESTIC LAW

Article 4 para. 2 of the Swiss Federal Constitution provides:

"Men and women shall have equal rights. Equality shall be provided for by law, in particular in
relation to the family, education and work ..."

The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows:

Article 30
"(1) The government of the canton of residence may, if there is good cause, authorize a person
to change his or her name.
(2) Engaged couples shall be authorized, if they so request and if they prove a legitimate
interest, to bear the wife’s surname as the family name once the marriage has been
solemnized...."

Article 160
"(1) Married couples shall take the husband’s surname as their family name.
(2) A bride may, however, make a declaration to the registrar that she wishes to keep the
surname she has borne to date, followed by the family name...."
Article 270
"(1) The children of married couples shall bear their family name...."

Article 8a of the final section

"Within one year of the entry into force of the new Act, a woman who was married under the
old law may make a declaration to the registrar that she wishes to put the surname she bore
before her marriage in front of the family name."

By a custom recognized in case-law, married couples may also put the wife’s surname after the
husband’s surname, joining the two with a hyphen. This double-barreled name, however, is not
regarded as the legal family name.

Court Ruling: There was discrimination on the ground of sex contrary to Articles 14 and 8 taken
together. The advancement of today’s equality of sexes is a major goal for the members of the
States of the council of Europe. This means that valid and unquestionable reasons must be put
forward before a difference of treatment on the sole ground of sex could be regarded as
compatible with the convention. The difference of treatment lacks and objective and reasonable
justification and contravenes the convention.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government’s preliminary objections;
2. Holds by six votes to three that Article 8 (art. 8) applies in this case;
3. Holds by five votes to four that there has been a breach of Article 14 taken together with
Article 8 (art. 14+8);
4. Holds unanimously that it is unnecessary to determine whether there has also been a breach
of Article 8 (art. 8) taken alone;
5. Holds unanimously that Switzerland is to pay the applicants, within three months, 20,000
(twenty thousand) Swiss francs in respect of costs and expenses;
6. Dismisses unanimously the remainder of the claim for just satisfaction.
 2. PRETTY v. THE UNITED KINGDOM

The applicant is a 43-year-old woman. The applicant suffers from motor neuron disease (MND).
This is a progressive neuro-degenerative disease of motor cells within the central nervous
system. The disease is associated with progressive muscle weakness affecting the voluntary
muscles of the body. Death usually occurs as a result of weakness of the breathing muscles, in
association with weakness of the muscles controlling speaking and swallowing, leading to
respiratory failure and pneumonia. No treatment can prevent the progression of the disease.

The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999.
The disease is now at an advanced stage. However, her intellect and capacity to make decisions
are unimpaired. As she is frightened and distressed at the suffering and indignity that she will
endure if the disease runs its course, she very strongly wishes to be able to control how and
when she dies and thereby be spared that suffering and indignity.

Although it is not a crime to commit suicide under English law, the applicant is prevented by her
disease from taking such a step without assistance. It is however a crime to assist another to
commit suicide (section 2(1) of the Suicide Act 1961).

Intending that she might commit suicide with the assistance of her husband, the applicant's
solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written
on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist
her to commit suicide in accordance with her wishes.

4. Kosiek vs Germany

Facts: Rolf Kosiek, German, worked in the First Institute of Physics at the University of
Heidelberg, first as an employee and then as a research assistant with the status of temporary
civil servant. Shortly after taking up his duties, he signed a statement certifying that he had been
given notice of the Federal Government’s decision on anti-democratic activities by civil servants
pursuant to the decree issued by the Land Government of Baden-Württemberg, whose first
paragraph read:
"It is taken for granted that candidates for civil-service posts shall not belong to
any organisation which sets out to abolish the free democratic constitutional
system or support such tendencies in any other way, directly or indirectly. If
necessary, appointment or employment should be regarded as having been
brought about by wilful deceit."

The third paragraph stated that it was for the authorities concerned to take "the necessary
action (disciplinary proceedings, dismissal)" "against staff who fail in their duty of loyalty.”

Mr. Kosiek joined the National Democratic Party of Germany (NPD). He left the NPD on 9
December 1980; he claims that he had already informed the Minister of Education and Culture,
in January 1974, that he intended to leave the party as soon as he was given tenure. He was an
NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May
1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to
secure any seats in the Bundestag.
Mr. Kosiek set out his political views in two books. The first of these, published in September
1972 and reprinted several times, is entitled "Marxismus? Ein Aberglaube! Naturwissenschaft
widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science
disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is
entitled "Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den
Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation").

In 1970, he applied for a position as lecturer at the State Engineering College. He passed a test
there, and the college asked the Ministry of Education and Culture to appoint him. However, he
was not appointed thereat. A year later, having learned through the press that his political
activities in the NPD had been the main reason for his failure to secure the appointment, Mr.
Kosiek went to court to compel the Land to employ him. His case did not prosper. The Court of
Appeal held that he did not afford the guarantee required that he would at all times uphold the
free democratic constitutional system within the meaning of the Basic Law. It based its
conclusions mainly on his book "Das Volk in seiner Wirklichkeit."

In 1972, the applicant applied for a vacant post as lecturer at Nürtingen Technical College. With
two of the other seven candidates he took a test and was interviewed. The Lecturers’ Council
recommended the Ministry of Education and Culture to appoint him. On the same day, he was
interviewed on the subject of his past activities as a member of the Land Parliament and his
future political intentions. Immediately afterwards, he wrote to the principal of the college
assuring him that he would, if appointed, keep his professional duties and private political
commitment entirely separate and would not misuse his position as a teacher for political ends;
he added that he had no intention of appearing in public in Nürtingen or the surrounding area
as a party militant - during the election campaign for the Bundestag, for example.

The Ministry appointed him as a lecturer with the status of probationary civil servant. Eventually,
the principal of the College requested that Mr. Kosiek be given tenure for life. After examining
whether the legal conditions for tenure were fulfilled, the Ministry replied that Mr. Kosiek’s
attitude and political activities had given rise to doubts concerning his loyalty to the
Constitution and that he might even have to be dismissed.

The applicant was interviewed on the subject of his attitude to the Constitution. Later, the
Ministry gave him notice of dismissal, citing, inter alia, section 38(2) of the Land Civil Servants
Act, which provides for dismissal of a probationary civil servant where he has not proved himself
during the probationary period, and the decree declared him unsuitable for the post; as a
prominent NPD official, he had approved of NPD aims which were inimical to the Constitution
and had thus shown that he did not support the free democratic constitutional system by his
every word and deed and was not prepared to uphold it. According to the Ministry, the NPD
behaved in a manner hostile to the Constitution since, among other things, it rejected the idea
of international understanding, human rights and the existing democratic order; specifically, it
preached extreme nationalism and a racist ideology, and wished to abolish parliamentary
government and the multi-party system.

On 8 March 1974, the applicant lodged an objection against his dismissal. This was rejected by
the Ministry. He instituted proceedings before the Stuttgart Administrative Court on 10 June.

He asserted that it was common knowledge that he had personally and actively upheld the free
democratic system. Since becoming a teacher he had resigned from several of his NPD posts,
including those of chairman of the Rhine-Neckar branch, district agent for North Baden and
member of the Federal Executive Committee responsible for university matters. In addition, he
had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not
appeared there in public. His membership of a party with aims allegedly inimical to the
Constitution was no reason for dismissing him. The Technical College and the Staff Committee
had supported him and had testified to his personal and professional abilities. Finally, the
probationary period was now over: the period which he had previously spent as a temporary
civil servant should be added to the two years and seven months which he had spent as a
probationary civil servant.

The Court held that Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line.
On the contrary, he had identified himself with it by his many militant activities. These, and the
personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast serious
doubts on his loyalty to the Constitution.

Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art,
science, research and teaching, did not lead to any different conclusion. Academics had a large
measure of professional independence but that did not absolve them from their duty of loyalty
to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil
servants, and a university lecturer with the status of probationary civil servant could be
dismissed for unsuitability.

The Federal Administrative Court found against him been prompted, as the Court of Appeal had
held, by statements in the applicant’s book "Das Volk in seiner Wirklichkeit" but had been
corroborated and strengthened by them. The Constitutional Court decided on 31 July 1981 not
to entertain the constitutional complaint, on the ground that it had insufficient prospects of
success.

Citing its own case-law, it recalled firstly that the duty of loyalty to the State and the
Constitution was one of the traditional principles of the civil service. Anyone who was not clearly
prepared at all times to uphold the free democratic constitutional system was thus unfit to hold
a civil-service post. Any probationary civil servant who could not be relied upon to do so must
therefore be dismissed on grounds of personal unsuitability. In this connection, membership of
a party whose aims were incompatible with the free democratic system was a relevant
consideration.

In the ECHR level, Mr. Kosiek claimed that his dismissal contravened Article 10 of the
Convention:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary."
The Government contended that this provision was not material in the circumstances; in their
submission, the present case concerned the right - not secured in the Convention - of access to
a post in the civil service. This contention did not find favour with the Commission.

The Universal Declaration of Human Rights of 10 December 1948 and the International
Covenant on Civil and Political Rights of 16 December 1966 provide, respectively, that "everyone
has the right of equal access to public service in his country" (Article 21 para. 2) and that "every
citizen shall have the right and the opportunity ... to have access, on general terms of equality,
to public service in his country" (Article 25). In contrast, neither the European Convention nor
any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed out,
the signatory States deliberately did not include such a right: the drafting history of Protocols
Nos. 4 and 7 shows this unequivocally. In particular, the initial versions of Protocol No. 7
contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25 of
the International Covenant; this clause was subsequently deleted. This is not therefore a chance
omission from the European instruments; as the Preamble to the Convention states, they are
designed to ensure the collective enforcement of "certain" of the rights stated in the Universal
Declaration.

While this background makes it clear that the Contracting States did not want to commit
themselves to the recognition in the Convention or its Protocols of a right of recruitment to the
civil service, it does not follow that in other respects civil servants fall outside the scope of the
Convention. In Articles 1 and 14, the Convention stipulates that "everyone within <the>
jurisdiction" of the Contracting States must enjoy the rights and freedoms in Section I "without
discrimination on any ground." And Article 11 para. 2 in fine, which allows States to impose
special restrictions on the exercise of the freedoms of assembly and association by "members of
the armed forces, of the police or of the administration of the State", confirms that as a general
rule the guarantees in the Convention extend to civil servants.

It is not for the European Court to review the correctness of the previous courts’ findings.

Access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr.
Kosiek such access - belated though the decision was - the responsible Ministry of the Land
took account of his opinions and activities merely in order to determine whether he had proved
himself during his probationary period and whether he possessed one of the necessary personal
qualifications for the post in question.

Held: By sixteen votes to one that there has been no breach of Article 10.
 5. Johnston and others vs Ireland

Facts:
The applicants are Roy H.W. Johnston (father), Janice Williams-Johnston (mother), and Nessa
Doreen Williams-Johnston (daughter). Roy married a Miss M in 1952 in a Church of Ireland
ceremony. Three children were born of this marriage. In 1965, it became clear to both parties
that the marriage had irretrievably broken down and they decided to live separately at different
levels in the family house. Several years later both of them, with the other’s knowledge and
consent, formed relationships and began to live with third parties. By mutual agreement, the
two couples resided in self-contained flats in the house until 1976, when Miss M moved
elsewhere. Since 1971, Roy and Janice lived together and in 1978, Nessa was born. Roy
consented to his name being included in the Register of Births as the father. Under the
Constitution of Ireland, Roy is unable to obtain, in Ireland, a dissolution of his marriage to
enable him to marry Janice. He has taken the following steps to regularise his relationship with
her and with his wife and to make proper provision for his dependents.
(a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the
possibility of obtaining a dissolution of the marriage outside Ireland. His London
solicitors advised that, in the absence of residence within the jurisdiction of the English
 courts, he would not be able to do so in England, and the matter has therefore not been
pursued.
(b) On 19 September 1982, he concluded a formal separation agreement with his wife,
recording an agreement implemented some years earlier. She received a lump-sum of
IR£8,800 and provision was made for maintenance of the remaining dependent child of
the marriage. The parties also mutually renounced their succession rights over each
other’s estates.
(c) He has made a will leaving his house to Janice for life with remainder over to his four
children as tenants in common, one half of the residue of his estate to Janice, and the
other half to his four children in equal shares.
(d) He has supported Nessa throughout her life and has acted in all respects as a caring
father.
(e) He contributed towards the maintenance of his wife until the conclusion of the
aforementioned separation agreement and has supported the three children of his
marriage during their dependency.
(f) Janice has been nominated as beneficiary under the pension scheme attached to his
employment.
(g) He has taken out health insurance in the names of Janice and Nessa, as members of his
family.

Janice, who is largely dependent on Roy for her support and maintenance, is concerned at the
lack of security provided by her present legal status, in particular the absence of any legal right
to be maintained by him and of any potential rights of succession in the event of intestacy. As is
permitted by law, she has adopted the Roy’s surname, which she uses amongst friends and
neighbours, but for business purposes continues to use the name Williams. According to her,
she has felt inhibited about telling employers of her domestic circumstances and although she
would like to become an Irish citizen by naturalisation, she has been reluctant to make an
application, not wishing to put those circumstances in issue.

Nessa has, under Irish law, the legal situation of an illegitimate child and her parents are
concerned at the lack of any means by which she can, even with their consent, be recognised as
their child with full rights of support and succession in relation to them. They are also concerned
about the possibility of a stigma attaching to her by virtue of her legal situation, especially when
she is attending school.

Held:
FOR THESE REASONS, THE COURT

1. Rejects unanimously the Government’s preliminary pleas;

2. Holds by sixteen votes to one that the absence of provision for divorce under Irish law
and the resultant inability of the first and second applicants to marry each other do not
give rise to a violation of Article 8 or Article 12 of the Convention;

Article 12. Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.

Article 8. (1) Everyone has the right to respect for his private and family life, his home and his
correspondence. (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."

3. Holds by sixteen votes to one that the first and second applicants are not victims of
discrimination, contrary to Article 14 taken in conjunction with Article 8, by reason of the
fact that certain foreign divorces may be recognised by the law of Ireland;

Article 14. The enjoyment of the rights and freedoms set forth in the 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.

4. Holds by sixteen votes to one that Article 9 is not applicable in the present case;

(Art 9 guarantees to everyone the "right to freedom of thought, conscience and religion).

5. Holds unanimously that, as regards the other aspects of their own status under Irish law
complained of by the first and second applicants, there is no violation of Article 8;

6. Holds unanimously that the legal situation of the third applicant under Irish law gives
rise to a violation of Article 8 as regards all three applicants;

As is recorded in the Preamble to the European Convention of 15 October 1975 on the Legal
Status of Children born out of Wedlock, "in a great number of member States of the Council of
Europe efforts have been, or are being, made to improve the legal status of children born out of
wedlock by reducing the differences between their legal status and that of children born in
wedlock which are to the legal or social disadvantage of the former". Furthermore, in Ireland
itself this trend is reflected in the Status of Children Bill recently laid before Parliament.

In its consideration of this part of the present case, the Court cannot but be influenced by these
developments. As it observed in its above-mentioned Marckx judgment, "respect" for family life,
understood as including the ties between near relatives, implies an obligation for the State to
act in a manner calculated to allow these ties to develop normally. And in the present case the
normal development of the natural family ties between the first and second applicants and their
daughter requires, in the Court’s opinion, that she should be placed, legally and socially, in a
position akin to that of a legitimate child.

Examination of the third applicant’s present legal situation, seen as a whole, reveals, however,
that it differs considerably from that of a legitimate child; in addition, it has not been shown that
there are any means available to her or her parents to eliminate or reduce the differences.
Having regard to the particular circumstances of this case and notwithstanding the wide margin
of appreciation enjoyed by Ireland in this area, the absence of an appropriate legal regime
reflecting the third applicant’s natural family ties amounts to a failure to respect her family life.

Moreover, the close and intimate relationship between the third applicant and her parents is
such that there is of necessity also a resultant failure to respect the family life of each of the
latter. Contrary to the Government’s suggestion, this finding does not amount, in an indirect
way, to a conclusion that the first applicant should be entitled to divorce and re-marry; this is
demonstrated by the fact that in Ireland itself it is proposed to improve the legal situation of
illegitimate children, whilst maintaining the constitutional prohibition on divorce.

7. Holds by sixteen votes to one that it is not necessary to examine the third applicant’s
allegation that she is a victim of discrimination, contrary to Article 14 taken in
conjunction with Article 8 (art. 14+8), by reason of the disabilities to which she is subject
under Irish succession law;

8. Holds unanimously that Ireland is to pay to the three applicants together, in respect of
legal costs and expenses referable to the proceedings before the Commission and the
Court, the sum of twelve thousand Irish pounds (IR£12,000), together with any value
added tax that may be chargeable;