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 provision is not a fundamental right, but a constitutional limitation on names, as it refers to the elimination of noble titles from names[8].
[1] The findings of the study reflect the author’s own academic opinion and should not be considered in any respect as the official position of the Constitutional Court of Hungary. This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service.
[2] Article 22 of the Italian Constitution: “No-one may be deprived of his legal capacity, citizenship, or name for political reasons.”
[3] Giorgio Pino: The right to Personal Identity in the Italian Private Law: Constitutional Interpretation and Judge-Made Rights. In: M. Van Hoecke and F. Ost (ed.): The Harmionization of Private Law in Europe (Oxford: Hart Publishing 2000) 225−237.
[4] Article 2 of the Italian Constitution: “The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.”
[5] Codice Civile (Royal Decree of 16 March 1942, no. 262.). Section 6 of the Italian Civil Code rules that “Every person is entitled to the name attributed to him or her by law. The name includes the first name and the surname. Changes, additions, or corrections to the name are not permitted, except in the cases and with the formalities indicated by law”. Other relevant legislation provisions protecting and regulating the detailed rules on the right to a name can be found also Sections 7 and 8, which deal respectively with protection for the right to a name and protection for family reasons. Moreover, the Italian Civil Code provides also protection to pseudonyms. However, pseudonyms do not enjoy protection at a constitutional level.
[6] Sentence n. 297/1996 by the Italian Constitutional Court.
[7] The Decree of the President of the Republic of November 3, 2000, No. 396 on “Regulations for the revision and simplification of the civil status system” contains detailed rules on the names and surnames.
[8] According to Article XIV: “Titles of nobility shall not be recognised. The predicates (tokens of nobility) included in those existing before 28 October 1922 shall serve as part of the name”.