Court/Judicial body: Constitutional Court of Hungary
Date: 3 December 2001 CRC
Provisions: Article 7: Name and nationality
Other international provisions: International Covenant on Civil and Political Rights, Article 24(2): Right to be registered with a name after birth
Domestic provisions: Constitution Law-Decree 17/1982 on the Registers, the Marriage Procedure and on Bearing Names (LDR)
Background: The Constitutional Court consolidated and ruled on several petitions submitted to it concerning the right to bear and change names. One of the petitioners had filed a request at the Registrar’s Office to enter in the register the name “Györgyike” as the second name of their child as a continuation of family tradition, having regard to the fact that the grandmother, the great grandmother and the great great grandmother of the child had also borne this name. The Registrar rejected the registration of “Györgyike” on the basis that only registration of the name “Györgyi”, included in the ‘Book of Forenames by Ladó’, was possible, therefore the latter name was entered in the register. The petitioner challenged various laws governing the matters of bearing, changing, and amending names, arguing that preventing a child from bearing the name of her ancestors is a violation of human rights and the Constitution. The petitioner underlined that the rights of children must be protected as early as in the phase of choosing the child’s name, and guarantees need to be provided in the laws of Hungary.
Issue and resolution: Right to have and bear one’s own name; right to choose, change and amend one’s own name. The Court refused the petition as the requested name has in the meantime been entered into the Hungarian Book of Forenames, therefore it is possible to change the child’s name to the requested one. The Court found that the right to have and bear one’s own name is a fundamental right – it is a fundamental element of the right to self-identification, which cannot be withdrawn or restricted by the State. However, other elements of the right pertaining to names, in particular the selection, changing and amending of names, may be restricted by the legislature on the basis of “necessity and proportionality”.
Court reasoning: As far as choosing a name is concerned, the Constitutional Court recognises that as a child has the right to their own name from the moment of birth, the parents’ right to choose the child’s name is considered a fundamental, inalienable right. The constituent elements of this fundamental right may however be subject to restrictions by the state based on necessity and proportionality. The Constitutional Court pointed out that the State is end to determine – on the basis of public interest, linguistics and social-historical traditions – what is considered to be a name and within what scope persons may exercise the right to have their own names. Such restrictions may, for example, include: a child born in a family may not be given a family name different from that of the father or the mother; a forename that cannot be justified by linguistics or by traditions; or the name may not refer to a person’s identity falsely: e.g. a woman divorced more than once may not bear the name of one of her former husbands. In response to the petitioner’s arguments, the court noted that section 27 paragraph (4) of the LDR provides for the following: “In the register of births, a maximum of two forenames – unless otherwise provided by a statute – shall be recorded in the order specified by the parents, chosen from the names listed in the Hungarian Book of Forenames with a supplement on the forenames of ethnic minorities, corresponding to the gender of the child…”. Thus, the Hungarian Book of Forenames (Ladó’s Book of Forenames) was an important and legitimate source of the LDR. Since the selecting, changing and amending of one’s name are rights that can be restricted by the State, the requirement to use a specific book mandated under the law is not considered to be a restriction by the State violating a fundamental right.
Excerpt citing CRC and other relevant human rights 3. The various catalogues of human rights specify the right to have one’s own name as a human right. For example, according to Article 24 point 2 of the International Covenant on Civil and Political Rights promulgated in Hungary in Law-Decree 8/1976 (hereinafter: the Covenant): “Every child shall be registered immediately after birth and shall have a name.” According to Article 7 point 1 of the Convention on the Rights of the Child promulgated in Hungary in Act LXIV of 1991: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.” … … 4. From the human rights declarations referred above… one can draw the conclusion that merely the right to have one’s own name (alone) is a human right. …
CRIN comments: CRIN believes the Court’s reasoning is partially consistent with the CRC. While the Court correctly recognised that the right to one’s own name is protected by Article 7, the Court failed to recognise that the child also has a right to the preservation of their identity and family relations without unlawful interference under Article 8. The Court also failed to acknowledge that the best interests of the child must be a paramount consideration in all actions concerning them, in accordance with Article 3.
Citation: Decision 58/2001 (XII. 7.) AB
Link to full judgement: http://www.mkab.hu/letoltesek/en_0058_2001.pdf