Human Rights Committee
Fifty-second session
ANNEXE
Views of the Human Rights Committee under article 5, paragraph 4,
of the Optional Protocol to the International Covenant on Civil
and Political Rights
Fifty-second session[*]
Communication No. 453/1991
Submitted by: A.R. Coeriel and M.A.R. Aurik
[represented by counsel]
Victims: The authors
State party: The Netherlands
Date of communication: 14 January 1991 (initial submission)
Date of decision on admissibility: 8 July 1993
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 October 1994,
Having concluded its consideration of communication No. 453/1991 submitted to the Human Rights Committee by A.R. Coerieland M.A.R. Aurik under the
Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the authors of the communication, their counsel and the State party,
Adopts its Views under article 5, paragraph 4, of the Optional Protocol.
1. The authors 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:
2.1 The authors 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.
2.2 Subsequently, the authors 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 authors' request, on the ground
that their cases did not meet the requirements set out in the 'Guidelines for the change of surname' (Richtlijnen voor geslachtsnaamwijziging 1976). The decision further stipulated that a positive decision would have been justified only by exceptional circumstances, which
were not present in the authors' cases. The Minister considered that the authors' 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.
2.3 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 17 October 1990, the Council dismissed
the authors' 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 authors' 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.
2.4 On 6 February 1991, the authors submitted a complaint to the European Commission of Human Rights. On 2 July 1992, the European
Commission declared the authors' complaint under articles 9 and 14 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 18 of the Covenant. They also claim that said refusal constitutes
unlawful or arbitrary interference with their privacy.
The State party's observations and the authors' comments thereon:
4.1 By submission of 7 July 1991, the State party replies to the Committee's request under rule 91 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
17 and 18 of the Covenant.
4.2 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.
4.3 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.
4.4 The State party submits that the authors in the present case have been Dutch citizens since birth and grew up in a Dutch cultural
environment. Since the authors' 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 authors,
as the new names requested by them were perceived as having religious connotations.
4.5 The State party states that the authors 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 authors' religious
convictions and that they are free to manifest their religion. The State party further contends that the fact that the authors 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.
4.6 As regards the authors' claim under article 17 of the Covenant, the State party contends that the authors 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.
4.7 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 authors have failed to advance a claim within the meaning of article 2 of the Optional Protocol.
5.1 In their reply to the State party's submission, the authors 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 authors submit declarations made by two pandits in England and by the Swami in New Delhi.
5.2 One of the authors, Mr. Coeriel, further submits that, although a Dutch citizen by birth, he grew up in Curaçao, 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.
5.3 The authors 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.
The Committee's admissibility decision:
6.1 During its 48th session, the Committee considered the admissibility of the communication. With regard to the authors' 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.
6.2 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 authors' surnames changed was arbitrary should be dealt with on the
merits. It considered that the authors 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 authors' comments thereon:
7.1 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 See the Committee's Views with regard to communications
No. 35/1978 (Aumeeruddy-Cziffra v. Mauritius, Views adopted on 9 April 1981) and No. 74/1980 (Estrella v. Uruguay, Views adopted on 29 March 1983). 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.
7.2 Subsidiarily, the State party argues that the refusal to grant the authors 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 authors a change of surname was thus pursuant to domestic legislation and regulations.
7.3 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 authors 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 request of this kind would therefore be at
odds with the policy of the Netherlands Government of refraining from any action that could be construed as interference with the
internal affairs of other cultures". The State party concludes that, taking into account all interests involved, it cannot be said
that the decision not to grant the change of name was arbitrary.
8. In their comments on the State party's submission, the authors 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 authors, and that the State party should
have taken into account the consequences of the rejection of their request.
9.1 During its 51st 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.
9.2 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 unreasonable
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.
9.3 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.
9.4 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.
9.5 As regards the present case, the State party explains that the authors' 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 has not been established that the authors 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 authors 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:
10.1 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.
10.2 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 17. 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.
10.3 The Committee now proceeds to examine whether in the circumstances of the present case the State party's dismissal of the authors'
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.
10.4 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.
10.5 In the present case, the authors' 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 authors 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 authors' rights
under article 17 not to be reasonable. In the circumstances of the instant case the refusal of the authors' request was therefore
arbitrary within the meaning of article 17, paragraph 1, of the Covenant.
11. 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.
12. 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.
13. 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.
[*] The text of individual opinions from Messrs. N. Ando and K. Herndl is appended to the Views.
APPENDIX
Individual Opinions concerning the Committee's Views
1. 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 authors' allegation that the requested change of the authors' 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 authors cannot follow the desired religious education
without the change of surname (see paragraph 9.5), and apparently, on the basis of that argument, the authors' 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 authors'
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 3 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.