Ágnes Németh: The constitutional protection of the right to a name[1] (ABSz, 2024. Különszám, 39-54. o.)

Abstract

This Article seeks to put into light the constitutional protection of the "right to a name". As a first step, the research examines if the texts of constitutions/human rights documents have explicit references to the protection of the right to a name. After the textual evaluation, the Article focuses on the relevant case-law of constitutional courts. Based on the decisions of the Constitutional Court of Hungary, and on the judgments of the Constitutional Court of Italy, it seeks to identify the core elements and spheres of the right to a name as a fundamental right in the jurisprudence of the different countries. The paper also looks into the practice of the European Court of Human Rights, which elaborated the minimum standards of protection. Furthermore, it also takes a look at some relevant cases of the Court of Justice of the European Union. The cases allow for a comparative evaluation. The protection of the right to a name as a fundamental right has different roots depending on the text of the Constitutions and on the dogmatics elaborated by the Constitutional Courts or by the international court. The Article examines what the fundamental rights and freedoms are from where the constitutional doctrine and the judicial organs stem the right to a name from. The evaluation and the highlighted case law below shed light on that, and seeks the anwers with a comparative method.

Keywords: right to a name, human dignity, right to change a name, right to private sphere, comparative constitutional law

I. The constitutional protection of the right to a name: references in the texts of the constitutions

I.1. The right to a name in the text of the Constitution of Italy

The Italian Constitution has an explicit provision on the right to a name. Article 22[2] ensures that no-one may be deprived of his or her name for political reasons. The right to a name is therefore one of the constitutionally recognised and guaranteed personality rights. In addition to that, also other constitutional provisions refer to the name. The Italian Constitution is based on the concept of the intrinsic vale of the human being. The key-norm to its "most important substantive principle, the 'personalistic principle'",[3] is also a relevant provision when it comes to the right to the name, therefore also Article 2 can be applied in the protection of the right to a name, as in the Italian legal system, in civil law, right to a name is recognised as one of the personality rights.[4] The main rules on a statutory level on the right to a name can be found in the Italian Civil Code.[5] The right to personal identity is one of the rights that make up the irrevokable heritage of the human person, so that its infringement may also constitute a violation of Article 2.[6] Another legal sources of the normative content of the right to a name in the Italian law system are Royal Decree no. 1238 of 1939 on de Order of Civil Status, and Presidential Decree no. 396 of 2000, which provide further clarification with regard to the right to a name.[7] Several points of the Code and the decree went under constitutional revision by the Constiutional Court, which will be discussed below. In addition to Article 2 and 22., there is also another provision of the Italian Constitution that refers to names: Article XIV, which is amongst the transitional and final provisions. This pro-

- 39/40 -

vision is not a fundamental right, but a constitutional limitation on names, as it refers to the elimination of noble titles from names[8].

I.2. The right to a name in the text of the Constitution and Fundamental Law of Hungary

While the Italian Constitution refers directly to the right to a name as a constitutionally protected right, neither the wording of the previous Constitution of Hungary[9], nor of the current Fundamental Law refer explicitly to the "right to a name". As a consequence, it was the practice of the Constitutional Court that raised the protection of this right to a constitutional level, establishing it as a sui generis fundamental right. Already under the previous Constitution, the Constitutional Court of Hungary established that the right to a name has constitutional roots, as it derives from the right to human dignity.[10] Also in the Hungarian system, there are rules in lower legal sources that form the normative content of the right to a The Civil Code mentions the right to bear a name among the rights of the personality.[11] Section 2:42 enumerates the specific personality rights, and according to point f), any violation of the right to bear a name shall be construed as violation of personality rights. In administrative law, it is the Act I of 2010 on Civil Status Procedure that regulates certain elements and procedures related to the right to a name (for example the procedure of modification of a name). This Article does not go into details about the legal conditions of the right to a name at a statutory level, but rather focuses on the constitutional protection thereof.

II. Right to a name: constitutional case-law in Hungary

This chapter depicts how the jurisprudence of the Constitutional Court of Hungary provided the protection of the right to a name on a constitutional level. Cases are grouped according to the spheres of the right to a name elaborated by the Court.

II.1. Right to one's own name as expression of self identity: the inalienable and unrestrictable sphere of the right

The text of the previous Constitution and the current Fundamental Law do not expressly refer to the 'right to a name', therefore, it was the Constitutional Court of Hungary that identified this as a constitutional right and that elaborated its doctrine. The landmark decision of the Constitutional Court of Hungary that identified the right to a name at a constitutional level was Decision 58/2001. (XII. 7.) AB. The Constitutional Court of Hungary raised the right to a name to a constitutionally protected right. According to the Decision, the right to a name can be derived from the right to human dignity. The legal doctrinal innovation of the decision was that - even without explicit textual reference in the Constitution - it recognised the right to a name as a fundamental right in its own right and categorized its individual elements.[12] The Court established that "Every person has the inalienable right to his or her own name and to bear it, as an expression of (self-)identity. These rights are in the first domain of the right to a name and cannot be limited by the State. The right to one's own name would therefore be unrestricted, a fundamental right in its own right. The other elements of the right to a name, in particular the choice of name, the change of name, the modification of the name, may be constitutionally limited by the legislator on the basis of the necessity-proportionality test". By this distinction, the Constitutional Court of Hungary distinguished the two core elements of this constitutional right, which have different nature and different limitations. The first sphere enjoys an absolute constitutional protection, where limitations are out of question. The 'own name' ensures exclusivity, the chance to be differentiated from anybody else. The right to one's own name is inalienable, untouchable, and the State can not dispose over it. Everyone must have an own name, which can not be substituted neither by a number, nor by a code or by any other symbol. The right to one's own name is a core defining element of the personal identity, which expresses the identity of someone, and at a same time, the difference from others. So it expresses also that the person can not be substituted by another. The right to one's own name is also a core element of self-identity, which, from birth, is not alienable nor limitable by the State. Its substance means that one can not be deprived of the name under which he or she was registered at birth, the State must not modify it without the