Monday, 13 December 2010

Right to a Name Protected by Right to Privacy

The UN Human Rights Committee has concluded that  language legislation imposing a 'Latvian-sounding name and surname' on all citizens violated the right to private life. Raihman  v. Latvia, and the Views were agreed recently although they have yet to be issued formally. I have received a copy of them, but each page is in an individual file and it is complicated to post on the blog. If someone cannot wait, I will be happy to send them all of this by e-mail.
Here is a comment from Prof. Fernand de Varennes on the recent ruling:
I am very pleased - and indeed relieved - with this conclusion for a number of reasons. On a personal level, I have to admit that I was instrumental in “inspiring” the complainant, Mr Raihman, to submit his case to the UN Committee almost eight years ago after a speech I made in Latvia on language rights. Mr Raihman became a citizen at around 40 years old and was then forced to have a name and surname in Latvian that changed his original Russian and Jewish name and surname. He started legal proceedings and eventually lodged a communication to the UN Human Rights Committee with the help of the Latvian Human Rights Centre.
From a legal point of view, this case clarifies the issue of whether a name/surname can be protected in its linguistic form under the right to private life. Previously the European Court of Human Rights had actually denied that similar legislation – though very different facts - amounted to a violation of the right to private life in the cases of Mentzen/Mencena v. Latvia and Kuhareca v. Latvia.
As surprising as this may sound, the European Court’s comments seemed at one point to suggest that because others have a right to use the official language of the country, it was appropriate that all citizens be given – and forced to use for official purposes – a “Latvianised” name/surname.  Despite a number of European documents and treaties indicating that minorities have the right to their own name and surname in their own language, the European Court never made reference to such standards, though in a sense the other cases it had to consider were not the strongest and didn’t raise the kind of facts which were probably needed.
For all the talk of European democracies being respectful of the identity and private life of individuals, some other comments of the European Court seemed not to reflect this, stating at various points that it should be left to states such as Latvia (through the doctrine of ‘margin of appreciation’) to deal with the use of an official language in relation to the name/surname of individuals. One would have thought the lessons from history where oppressive governments sought to extinguish the presence of ‘others’ by seeking to erase their names/surnames in other languages from the public sphere was long gone, but the European Court did not seem to completely reject such an option in the Latvian cases, though to be fair it did not exactly condone such measures either.
I worked from the very beginning with Mr Raihman and his team to develop the legal arguments and to illustrate the consequences of the restrictions on the use of Mr Raihman’s Russian first name and Jewish/Yiddish family name. The UN Committee’s views in Raihman v. Latvia are not published yet, but they have accepted the legal arguments which we developed, though unfortunately did not comment specifically on the arguments around the discriminatory impact of the difference of treatment on the ground of language. The communication will be released digitally in the near future, but I can forward the communication in jpeg format to anyone interested.
I've copied here the key page of the decision, with the reasoning of the Committee


mihai martoiu ticu said...

This might be of interest to other people. In the Netherlands there are individuals with double nationality, Dutch-Moroccan, and the Moroccan government has a list of allowed first names for boys. There is a lot of discontent about this, but it means that those parents, might appeal to the HR Committee?

Fernand said...

The short answer is possibly: individuals would however have to demonstrate (1) that they are prevented from using or register their first name; (2) and that this affects their private lives. Unless it is necessary for reasons provided for under the ICCPR (public health, safety, etc.), it would be a violation of the right to private life.