THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-484/1998
Zagreb, 11 July 2007
The Constitutional Court of the Republic of Croatia, composed of Petar Klarić,
President of the Court, and Judges Marijan Hranjski, Mario Kos, Davor Krapac, Ivan
Matija, Ivan Mrkonjić, Željko Potočnjak, Agata Račan, Emilija Rajić, Smiljko Sokol,
Nevenka Šernhorst and Vice Vukojević, in proceedings instituted by the constitutional
complaint of Ž. G. from S., represented by B. V., attorney-at-law from S., at its
session held on 11 July 2007, rendered the following
DECISION
I.
quashed:
The constitutional complaint is hereby accepted and the following are
- judgment of the Administrative Court of the Republic of Croatia, No.: Us7649/1995-4 of 16 October 1997;
- decision of the Ministry of Public Administration, class: UP/II-222-02/95-01/5,
entry no.: 515-02-03/4-95-2 of 7 October 1995, and
- decision of the Split General Administration Office, Splitsko-dalmatinska
County, class: UP/I-222-02/94-01/102, entry no.: 2181-10/95-09/RJ of 10 January
1995.
II.
The case if referred back to the Split General Administration Office,
Splitsko-dalmatinska County, for new proceedings.
III.
This decision shall be published in Narodne novine.
Statement of reasons
1.
The applicant lodged a constitutional complaint against the judgment of the
Administrative Court of the Republic of Croatia, No.: Us-7649/1995-4 of 16 October
1997, which rejected the applicant’s complaint against the decision of the Ministry of
Public Administration, class: UP/II-222-02/95-01/5, entry no.: 515-02-03/4-95-2 of 7
August 1995. This decision rejected the applicant’s complaint against the decision of
the Split Office of General Administration, Splitsko-dalmatinska County, class: UP/I222-02/94-01/102, entry no.: 2181-10/95-09/RJ of 10 January 1995, which rejected
the applicant’s request to change his surname from “G.” into the new surname “de
G.”.
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2.
The applicant deems that the disputed decisions and the judgment of the
Administrative Court violated his constitutional rights guaranteed in Articles 14 para.
2 and Article 35 of the Constitution, and that they violated Articles 3 and 19 of the
Constitution.
In the applicant’s view the disputed judgment is founded on a misinterpretation of the
provisions of Article 2 of the Personal Name Act (Narodne novine, Nos. 62/92 and
26/93). In his opinion the stand taken by the Administrative Court and the
administrative bodies that the word “de” is not a word and cannot be added to his
present surname is wrong.
To substantiate his constitutional complaint he gives the reasons why he requested a
change of surname: a feeling of respect for his ancestors who have been present in
the city of Split for several centuries, respect for their status in and contribution to the
city and homeland, the inheritance of their property and their values and virtues, his
membership in that family. He deems that they, as descendents, should not be
denied the right to carry their ancestors’ name and surname, which was “an
honourable name for their ancestors, thanks to their work in this region, and is also
honourable for their descendents.” He deems that the name change requested does
not contravene Article 8 of the Personal Name Act, and that his request should have
been granted.
The constitutional complaint is well founded.
3.
The applicant lodged a request with the first-instance administrative body for
permission to change his present surname “G.” into the new surname “de G.”. As a
reason for requesting the change he states that the prefix “de” was removed from his
father’s surname without his father’s will after the Second World War, but he
encloses documents which clearly show that his great-grandfather, grandfather and
father had the name “de G.” in their baptismal certificates. His father’s sister still
bears that name, as can be seen from her citizenship certificate.
In its decision of 10 January 1995 the administrative body at first instance rejected
the applicant’s request finding that it was not justified. It pointed out that the Personal
Name Act allows a person to have several first names or surnames in his personal
name but does not allow additional designations in a personal name (use of a
pseudonym, artistic name, nicknames, titles etc.) because these are not parts of a
personal name. Furthermore, in the view of the first-instance body, the requested
addition of “de” to the surname G. cannot be considered a surname because it is not
a surname in meaning but an addition in front of a surname used in some European
countries to denote noble ancestry.
The second-instance body rejected the applicant’s complaint and took the stand that,
in accordance with Article 2 para. 2 of the Personal Name Act, a personal name may
only contain words that are first names or surnames in the Croatian language, not
also words which are not these by their character (such as “of”, “from”). In the view of
the second-instance body, the designation “de” is not a first name or a surname in
meaning but a preposition meaning “of”, “from”, which is written in front of a surname
in some European countries to denote noble ancestry. The second-instance body
finds confirmation for the above in the documents that the applicant enclosed in his
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request, which show that the “de” in his ancestors’ surname was written with a smallcase and not a large-case initial letter.
Taking into account all the facts established in the administrative proceedings, and
the disputed act, the Administrative Court rejected the applicant’s complaint stating
that a personal name can only consist of words that serve to designate an individual
person (first name) and those that designate a family name or a name acquired by
marriage (surname).
In the view of the Administrative Court, the applicant’s request cannot be accepted
because the word “de” in meaning, standing alone, cannot designate an individual’s
surname so the change of name requested does not comply with the legal
requirements in Article 2 para. 2 of the Personal Name Act.
The Administrative Court found that the administrative body acted rightly when it
rejected the applicant’s complaint by stating in the reasons that a personal name may
only consist of words that denote names or surnames in the Croatian language but
not also of words which are not that in character.
4.
The relevant provisions of the Personal Name Act provide as follows:
Article 2
A personal name shall consist of a first name and a surname.
The first name and/or the surname may consist of several words. The person
whose first name or surname, or first name and surname, consist of several words
shall use the same personal name in legal transactions.
The first name and surname that a person uses in legal transactions may
consist of a maximum of two words each.
Article 6
Everyone has the right to change their personal name.
The request to change a personal name shall contain the reasons for
requesting the change, and the new personal name proposed must indicate that the
request was justified.
(...)
Article 8
A personal name change shall be approved in cases when justification for the
request is established and provided that the official bodies find that the new personal
name does not contravene the social rules and customs of the community in which
the person lives.
Article 9
A personal name change shall not be approved for a person being prosecuted
for a criminal offence by virtue of office, or for a person sentenced for such a criminal
offence until the sentence is served or as long as the legal consequences of the
sentence continue, or for a person who is found to have lodged the request to avoid
legally established obligations.
5.
The above provisions show that the competent body will reject the request for
a personal name change if it establishes that the person requesting it is a person in
Article 9 of the Personal Name Act, or that the change is requested for unjustified
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reasons, or that the new personal name contravenes the social rules and customs of
the community in which the person lives.
In this case the administrative bodies and the Administrative Court rejected the
applicant’s request after finding that the word “de” by its meaning, standing alone,
cannot denote a surname, i.e. that it is not a word in the meaning of Article 2 para. 2
of the Personal Name Act.
6.
Assessing the reasons for the constitutional complaint from the aspect of
Article 14 para. 2 of the Constitution, the Constitutional Court found that the disputed
decisions and the judgment of the Administrative Court violated the applicant’s
constitutional right to equality before the law.
In the view of the Constitutional Court, the legal opinions contained in the disputed
acts are not grounded on the proper application of the relevant substantive law and
on its interpretation that is acceptable in constitutional law. Starting from the relevant
provisions of the Personal Name Act given in point 4, the Constitutional Court finds
that the interpretation of the administrative bodies and the Administrative Court that
the personal name may only consist of words which each in themselves may serve
as a first name or a surname is not acceptable from the aspect of constitutional law,
because it does not emerge from the contents of the relevant provisions of the
Personal Name Act. It does not follow from Article 2 para. 2 of the Personal Name
Act that only a word which may be a surname in itself can be added to an existing
surname. Furthermore, the Personal Name Act does not empower the competent
bodies, when deciding on a request for a name change, to establish whether the
word proposed as an addition to an already existing surname is or is not a word
which may be a surname in itself.
For the above reasons, the Constitutional Court accepted the applicant’s allegation
that he was in this case not ensured equality before the law, guaranteed in Article 14
para. 2 of the Constitution.
7.
In the constitutional complaint the applicant also referred to the violation of the
constitutional right guaranteed in Article 35 of the Constitution, which provides as
follows:
Everyone shall be guaranteed respect for and legal protection of personal and
family life, dignity, reputation and honor.
In assessing whether the above article of the Constitution is relevant in the specific
case, since it does not explicitly mention the personal name, the Constitutional Court
started from the definition of the personal name as the designation of a natural
person’s identity. Besides designating the identity of a natural person as the bearer of
rights and obligations in legal transactions, the personal name also identifies people
in their families and community, and the right to a personal name is also an
individual’s personal right.
In this sense the protection of personal and family life, dignity, reputation and honour,
guaranteed and protected by the Constitution, certainly also refers to the personal
name. This means that everyone has the right to a personal name, that it is recorded
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in certain public books to protect its holder and provide legal security, that everyone
may (and is obliged to) use it, that no one can force a person to change a personal
name for ethnic, linguistic, political, cultural or any other reasons.
The right to a personal name change is a legal right and is subject to legally
prescribed restrictions. The right to a personal name change shall be realised by a
person who complies with legally prescribed requirements if the competent body
finds that the request is justified, provided that the new personal name does not
contravene the social rules and customs of the community in which the person lives.
In connection with the reasons for requesting a personal name change, such as in
the specific case in which the applicant requested the restitution of the surname that
his ancestors had until the Second World War, the Constitutional Court finds that the
protection of personal and family life, guaranteed in Article 35 of the Constitution,
also covers the right to change a personal name if this change, like in the specific
case, consists of resituating the surname held by the ancestors of the applicant of the
request.
In this case the competent bodies, by misinterpreting and misapplying Article 2 para.
2 of the Personal Name Act, rejected the applicant’s request without declaring
themselves about the justification of the applicant’s request, i.e. without examining
the reasons that he stated in his request (returning his ancestors’ surname). The
Constitutional Court therefore finds that the disputed enactments violated the
applicant’s constitutional right guaranteed in Article 35 of the Constitution.
8.
Finding, in the specific case, the violation of the constitutional right guaranteed
in Article 14 para. 2 of the Constitution, the Constitutional Court, on the grounds of
Articles 73 and 76 of the Constitutional Act on the Constitutional Court of the
Republic of Croatia (Narodne novine, Nos. 99/99, 29/02 and 49/02 – consolidated
wording), decided as in the pronouncement.
The decision about publication in Narodne novine is grounded on Article 29 para. 1 of
the Constitutional Act on the Constitutional Court of the Republic of Croatia.
PRESIDENT
Petar Klarić, LLD, m. p.