Permitting a change of surname and the applicant’s good faith

The complainants in the case opposed a decision of the Smiřice Municipal Authority which granted an application for a change of surname to the surname of their sister/daughter (the applicant had caused the death of the complainants’ sister/daughter and had been sentenced to 16 years custodial sentence for that act) and disagreed with a communication of the Regional Authority of the Hradec Králové Region which had not found any reasons for initiating review proceedings in this matter.

In the substantiation of his application, the applicant alleged that he had lost his fiancée to death and since they wanted to marry, he would like to use her surname as an act of respect and love. The applicant did not submit any evidence in support of his allegation and the administrative authority based its considerations solely on what the applicant wrote in the application.

Following the complainants’ submission, the Regional Authority obtained copies of the judgments in the man’s criminal case, which showed the circumstances under which the complainants’ sister/daughter had died. Nevertheless, the Regional Authority concluded that it was impossible to unequivocally infer a lack of good faith on the applicant’s part because the court decisions suggested his close emotional and personal bond to the deceased woman.

Under Section 82 (2) of the Civil Code, after the death of an individual, the protection of his personality rights may be claimed by any of his close persons. Granting the application for a change of surname to the surname of a deceased person can be seen as specific infringement of the deceased person’s personality rights that the parents and sister of the deceased person may seek to protect. After the change of surname was granted, the applicant had the same surname as the complainants, who can perceive this as infringement of the deceased individual’s personality rights as well as the personality rights of their own. Therefore, the Ombudsman opened an inquiry on the basis of the complaint.  

Under the Code of Administrative Procedure, review proceedings are not permissible where a decision has been made on personal status and the applicant has acquired rights in good faith. The aspect of the applicant’s good faith was crucial for assessing whether the Regional Authority should have opened review proceedings. The Ombudsman emphasised in her inquiry report that the applicant had concealed, in the application for a change of surname, that he was himself responsible for the woman’s death. Had the applicant indicated this fact, the administrative authority could have assessed his application differently instead of assuming that the applicant had not caused the death of his partner whose surname he wished to use. Also, if it were shown that the applicant did not tell the truth in his application as regards the planned marriage, he could not have acted in good faith.

After receiving the Ombudsman's inquiry report, the Regional Authority opened review proceedings before the expiry of the one-year period of the legal force of the municipal authority’s decision. It proved in the review proceedings that the applicant had not acquired the right to use his deceased partner’s surname in good faith and revoked the decision granting the change of surname. The Ombudsman subsequently closed the case.