a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  27-06-2018 / e)  6/2018 (VI. 27.) AB / f)  On the declaration of an omission on the part of the legislator which had yet to formulate a procedure allowing lawfully settled non-Hungarian citizens to change their names / g)  Magyar Közlöny (Official Gazette), 2018/96 / h) .
Keywords of the systematic thesaurus:
Fundamental Rights - Equality - Criteria of distinction - Gender.
Fundamental Rights - Equality - Criteria of distinction - Citizenship or nationality.
Fundamental Rights - Civil and political rights - Right to dignity.
Keywords of the alphabetical index:
Change of name, foreign national.
Lack of provision for a name-changing process for lawfully settled non-Hungarian citizens violated the right to human dignity and the prohibition of discrimination.
I. In accordance with Article 24.2.d of the Constitution and Section 27 of Act no. CLI of 2011 on the Constitutional Court (Act on the Constitutional Court), the applicant, a transsexual foreign citizen lodged a constitutional complaint seeking the annulment of Decision 36.Kpk.45.927/2016/4 of the Budapest-Capital Administrative and Labour Court (Administrative Court).
The applicant had previously been granted refugee status by the Hungarian authorities as he had been pursued in his home country due to his trans-sexuality. The applicant filed an application for gender reassignment with the Immigration and Asylum Office (hereinafter, the «Office»), as his official documents identified him as female but this description did not match his real gender identity. The Office rejected his request stating that there was no procedure or formal decision-making process available to cover these issues. The reason for the rejection was that the Office had no competence at all in this field and it could not refer the case to a competent authority for the applicant's birth certificate to be amended since his birth had not been registered in Hungary.
The applicant's challenge of the decision of the Office with the Administrative Court was rejected, on the basis that only Hungarian citizens were entitled to have changes to their gender altered by the registrar with the competence to alter the birth certificate. The process of changing the name was the legal basis of the alteration of the gender. As the applicant in this matter was not a Hungarian citizen, he did not have a Hungarian birth certificate and so this type of process was not applicable.
The applicant lodged a constitutional complaint against the decision of the Administrative Court, stating that it had violated his right to human dignity (Article II of the Constitution); right to private life (Article VI.1 of the Constitution) and the prohibition of discrimination (Article XV.2 of the Constitution). He claimed that the right to a name stemmed from the right to human dignity which was also applicable to transsexuals. There was, in his view, no reason to insist on the birth certificate; he was registered in the personal data and address registry and his gender and name could have been changed through this data. The rights to human dignity and to private life do not only belong to Hungarian citizens. They are universal human rights. The decision of the Administrative Court constituted a violation of the prohibition of discrimination based on national origin.
II. The Constitutional Court rejected the applicant's complaint on the basis that the Administrative Court, for want of applicable legal regulation, could not have come to any other conclusion.
The Constitutional Court ex officio, in line with Section 46 of the Act on the Constitutional Court, confirmed that the right to a name stemmed from the right to human dignity. The inner core of human dignity must be considered inviolable although its additional elements may be restricted in line with the necessity and proportionality test. Thus, the right to a name, representing the individual's identity, is an absolute one. However, altering the name may be treated differently and limitations imposed. In terms of regulating the ways of changing one's name, the State enjoys a wide margin of appreciation. The right of transsexuals to change their names should be viewed as a fundamental right based on the right to personal integrity and equal human dignity. Altering one's name, in the context of altering one's gender, is a special case and as it is attached to the personality of an individual, it falls within the sphere of the right to a name. Everyone is entitled to a name which reflects his or her gender.
The Constitutional Court stated that lawfully recognised refugees have (with exceptions regulated in Act no. LXXX of 2007 on refugee status) the same rights as the Hungarian citizens. The changing of a name, and its special case, the alteration of gender, was only open to Hungarian citizens. As the same rules do not apply to lawfully recognised refugees, this represents a discrimination based on national origin (Article XV.2 of the Constitution) and a violation of the right to human dignity (Article II of the Constitution). Therefore, the Constitutional Court declared an omission on the part of the legislator and called upon it to adopt appropriate and constitutionally compliant regulations by 31 December 2018.
The Constitutional Court also examined and took into consideration various judgments of the European Court of Human Rights and the Federal Constitutional Court of Germany. It also cited Resolution 2048 (2015) of the Parliamentary Assembly of the Council of Europe on Discrimination against transgender people in Europe and a judgment of the Court of Justice of the European Union.
III. Justices Tamás Sulyok and Mária Szívós attached a concurring reasoning to the Decision.