a) Hungary / b) Constitutional Court / c) / d) 07-12-2001 / e) 58/2001 / f) / g) Magyar Közlöny (Official Gazette), 2001/138 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - General questions - Limits and restrictions - Non-derogable rights.
Fundamental Rights - Equality - Criteria of distinction - Gender.
Fundamental Rights - Civil and political rights - Right to family life.
Fundamental Rights - Civil and political rights - Rights of the child.
Keywords of the alphabetical index:
Name, acquired through marriage / Name, right / Name, family, free choice / Name, modification.
In its Decision no. 8/1990, the Constitutional Court had paired the right to human dignity with the general right to a legal personality. In the present case, the right to one's name was derived from the right to a legal personality.
As the right to one's own name enjoys absolute constitutional protection, it must not be limited by the state. However, society and the state have an interest in regulating the use of names; therefore, the right to choose, change, or modify a name may be restricted by the legislator. When allowing people to choose, change or modify a name, the state should take into account other people's rights and freedoms, and the aim of a coherent and transparent population registration.
The Constitutional Court was seized on constitutionality of some provisions of the Family Act.
As regards the provision excluding the possibility of having a double-barrelled name as a family name, the Court considered that everyone has an inalienable right to his own name. This right must not be restricted by the state. Other components of the right to a name, like the right to choose, change and to modify one's name and to take a new name can be limited by the legislator.
Considering the claim that precluding a woman to re-take the surname of her first husband as her family name after the end of her second marriage was unconstitutional, the Court considered that the tradition and the personality rights of the family affected by the changing of the name justify such a legal regulation.
On the other hand, the provision under which, upon the request of the parents the registrar can change the name of the juvenile under 14 only once, was considered unconstitutional insofar as it limited the right of the parents to change the name of their children.
Furthermore, the Court held unconstitutional the provision of the Family Act under which only the wife has the right to take the husband's surname as her family name. In the Hungarian legal system the man's name is always the marital and family name upon marriage. The Court considered that such regulation is inconsistent with the principle of equality. However, it did not annul the provision, but called upon parliament to meet the legislative requirement and to pass an amendment to the Family Act.
Justice Harmathy attached a separate opinion to the judgment. According to the judge, the right to one's name is not a separate basic right. In addition, the judge held that it was unconstitutional that the registrar can change the name of a child based upon the parents' request only once. The reason of the unconstitutionality is that the registrar modifies the name. It is also unconstitutional (since it infringes the right to the child's self-determination) that the law does not require the consent of the child. Under the separate opinion, the Court should not have to state that parliament failed to comply with its legislative task when not making it possible for a husband to take his wife's family name as a marital name. To prove the marital status of women and the family status of children, that traditional custom under which the woman takes the family name of the man as her family name after marriage is justified. In addition, the Court should have declared it unconstitutional that the woman cannot take again the surname of her first husband as her family name after the end of her second marriage. This absolute prohibition could not be justified. Justice Bagi and the Chief Justice Nemeth joined to this opinion.
Justice Vasadi also attached a separate opinion to the judgment. Justice Vasadi did not agree with the majority of the Court in creating a new fundamental right: the right to one's name. According to the judge, the right to one's name is one of the personal rights ensured by the Civil Code. The right to a name is a right which should be protected against another private person and not against the state.