FOURTH SECTION

CASE OF CIUBOTARU v. MOLDOVA

(Application no. 27138/04)

JUDGMENT

STRASBOURG

27 April 2010

FINAL

27/07/2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ciubotaru v. Moldova,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 30 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27138/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Mihai Ciubotaru (“the applicant”), on 19 July 2004.

2. The applicant was represented among others by Mr V. Maximov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3. The applicant alleged, in particular, a breach of his right to respect for private life as a result of the authorities' refusal to register his ethnicity as declared by him.

4. On 5 September 2006 the Court decided to give notice of the application to the Government. On 30 September 2008 it also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1952 and lives in Chişinău. He is a writer and a professor of French.

6. The applicant's parents, Dumitru Ciubotaru and the late Sofia Caraiman were born in 1927 and 1928 respectively, in Bălţi, province of Bessarabia, Romania. Their Romanian civil status documents did not contain any information concerning their ethnic identity. In their marriage certificate issued by the Soviet authorities in 1949, the entry for ethnicity was left blank. However, the applicant's birth certificate issued by the Soviet authorities in 1952 recorded his parents as ethnic Moldovans. On the applicant's mother's birth certificate issued by the Soviet authorities in 1965 the ethnicity was also left blank. Later, the applicant's parents were recorded as ethnic Moldovans on their Soviet identity cards issued in 1976 and 1979, in accordance with applications completed and signed by them in which Moldovan ethnicity was indicated. On his Soviet identity card the applicant was also indicated as an ethnic Moldovan.

7. In 2002 the applicant applied to the Moldovan authorities to have his old Soviet identity card replaced by a Moldovan identity card. On the application form he wrote “Romanian” under ethnicity. However, he was told that his application would not be accepted unless Moldovan ethnicity was indicated on it. The applicant complied.

8. Shortly thereafter the applicant wrote to the local civil registration authority and requested, inter alia, that his ethnicity entry be changed from Moldovan to Romanian. In an answer dated 11 February 2003 the applicant was informed that since his parents were not recorded as ethnic Romanians in their birth and marriage certificates, it was impossible for him to be recorded as an ethnic Romanian.

9. On an unspecified date the applicant wrote to the central civil registration authority and again requested that his ethnic identity entry be changed from Moldovan to Romanian. In an answer of 2 July 2004 he was informed that Romanian ethnicity had not been indicated in his parents' documents and that, therefore, he could not claim such an ethnic identity. He was advised to search the National Archives for traces of Romanian origin of his grandparents and other ancestors. The applicant wrote numerous complaints to the Prime Minister, the President of the country and other officials, but to no avail.

10. On 26 July 2004 the applicant initiated proceedings against the State authority responsible for civil registration and identity papers and requested, inter alia, that his ethnicity entry and that of his parents be changed to Romanian in the State Population Registry database and in his identity papers. He argued that he did not consider himself to be an ethnic Moldovan and that it was contrary to his right to freedom of conscience and to his personal dignity to be considered part of an ethnic group which he believed to be an artificial creation of the Stalinist regime.

11. On 15 November 2004 the Rascani District Court dismissed the applicant's action on the ground that he had failed to prove that his parents were of Romanian ethnic identity as no such identity had been recorded in their identity papers. The applicant appealed and relied, inter alia, on the provisions of the Law on National Minorities (see paragraph 15 below) and on Article 8 of the Convention.

12. On 15 December 2004 the Chişinău Court of Appeal dismissed the applicant's appeal on the same grounds, stating that the applicant had failed to prove that his parents were ethnic Romanians. The applicant lodged an appeal on points of law with the Supreme Court of Justice.

13. On 6 April 2005 the Supreme Court of Justice dismissed the applicant's appeal on points of law and pointed out that according to section 68 of the Law on Documents pertaining to Civil Status (see paragraph 16 below) it was impossible to change his parents' ethnic identity to Romanian because in none of their identity papers had Romanian ethnicity been indicated.

II. RELEVANT NON-CONVENTION MATERIAL

A. Relevant domestic law

14. The relevant provision of the Constitution of the Republic of Moldova reads:

Article 10 - The unity of the people and the right to identity

“...

(2) The State recognises and guarantees to all the citizens the right to preserve, develop and express their ethnic, cultural, linguistic and religious identity.”

15. Law no. 382 of 19 July 2001 on the Rights of Persons belonging to National Minorities, in so far as relevant, reads:

Section 1

“Within the meaning of the present law, persons belonging to national minorities shall be all persons who live on the territory of the Republic of Moldova, who are its citizens, who have ethnic, linguistic, cultural and religious particularities which make them distinguishable from the majority of the population – the Moldovans – and who consider themselves as having a different ethnic origin.”

Section 2

“Any person belonging to a national minority shall have the right to choose freely whether or not he or she belongs to that minority. Such a choice or the exercise of rights related thereto shall not put the person in a disadvantageous situation.”

16. Law no. 100 of 26 April 2001 on Documents pertaining to Civil Status, in so far as relevant, reads:

Section 30

“The following information shall be indicated in a birth certificate:

(a) personal numeric code;

(b) the surname, given name, date and place of birth of the child;

(c) the surnames, the given names and the ethnic origin of the parents;

(d) the date of issue of the birth certificate and its number;

(e) the issuing authority of the birth certificate; ...”

Section 66

“(1) Applications for modification and rectification of documents pertaining to civil status shall be lodged with the Civil Status Office for the applicant's place of residence.

(2) The Civil Status Office shall uphold an application for modification and rectification of documents pertaining to civil status if:

(a) the document pertaining to civil status contains errors, blank sections, abbreviations or spelling mistakes, or if it lacks data; or

(b) the rules concerning the creation of documents pertaining to civil status have been breached; or

(c) the applicant possesses an official document proving a change of gender.”

Section 68

“It shall be impossible to rectify the ethnic identity of one's parents in their children's birth certificates, on the basis of identity papers of grandparents or other ascendants, if the parents' civil status documents do not contain information concerning the requested ethnic identity.”

17. Government Decision no. 333 of 18 March 2002 lists the information which must be included in the personal entry of each individual in the State Population Registry database. It provides, inter alia, that information such as blood group, colour of eyes, height, studies, ethnic identity and a specimen of signature have to be indicated in respect of every citizen. No information about an individual's religion is required.

B.  Collection and recording of ethnic data in Moldova

18. During Romanian rule between the two World Wars no ethnic data were collected or recorded by the State and the identity papers issued by the Romanian authorities did not contain any information concerning the bearer's ethnic identity.

19. After the territory of Moldova became part of the Soviet Union, the Soviet authorities recorded and indicated in each individual's identity papers his or her ethnic identity. The ethnic identity was determined on the basis of the individual's parents' ethnic identities. If the parents had different ethnic identities, the individual had to opt for one of them when receiving his first identity card at the age of sixteen. There was no possibility of subsequently changing one's ethnic identity in identity papers or in the civil records. The ethnic identity of the representatives of the main ethnic group of the MSSR was normally registered as Moldovan. Only in very few cases was it registered as Romanian and it is not clear what criteria were adopted for such a distinction.

20. The Soviet practice of collecting and recording ethnic data was perpetuated by the Moldovan authorities after independence, with the difference that no information concerning ethnic origin was inserted in the new Moldovan identity cards. Information about ethnic identity is recorded in each individual's personal entry in the State Population Registry database (see paragraph 17 above) and does not appear on any identity papers issued to individuals or on birth, marriage, divorce or death certificates. It only appears on the birth certificates of an individual's children under “parents”. Information concerning individuals' ethnic identity also appears in criminal judgments and in various documents issued by the prosecuting authorities where the ethnic identity of the participants in criminal proceedings, such as defendants, victims and witnesses, is mentioned. It also appears in the old Soviet passports which are still valid in Moldova and which are usually used by persons with very limited financial resources.

21. As in the Soviet Union, an individual's ethnic identity is recorded by the Moldovan authorities on the basis of the ethnic identities of his or her parents or the identity of one parent if they differ. When applying for identity papers, each individual is requested to complete a form with various personal details such as height, colour of eyes, blood group, mother tongue, ethnic identity and others. In practice, applications are rejected if the ethnic identity indicated in the form by the applicant is not based on that of his or her parents. It is impossible under Moldovan law to change one's ethnic identity without changing the ethnic identity of one's parents and it is impossible to change the ethnic identity of one's parents on the basis of entries in the identity papers of one's grandparents (see paragraph 16 above).

C. Relevant case-law of the domestic courts and ethnic statistics

22. The Government submitted a domestic court judgment dating from June 2006 in the case of Caragheorghi where a person had succeeded in having his ethnic identity changed from Gagauz to Greek. Neither of his parents were registered as ethnic Greeks; however, the court accepted evidence concerning one of his ancestors, born in 1822, who was a Greek from the Ottoman Empire.

23. According to a press release of the National Bureau of Statistics of the Republic of Moldova, according to the latest census conducted in 2004, the country had the following ethnic composition: 75.8% Moldovan, 8.4% Ukrainian, 5.9% Russian, 4.4% Gagauz, 2.2% Romanian, 1.9% Bulgarian and 0.1% other ethnic origins.

D. Activity of International Organisations

24. The relevant provisions of the Framework Convention for the Protection of National Minorities of 1995, which entered into force in respect of Moldova on 1 February 1998, provide as follows:

Article 3

“Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”

25. The relevant part of the document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE/OSCE of 1990 reads as follows:

“Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.”

THE LAW

26. The applicant claimed that there had been a violation of Article 8 of the Convention on account of the fact that when collecting and recording information concerning his identity the authorities had refused to register his Romanian ethnic identity and forced on him an ethnic identity with which he did not identify. The relevant part of Article 8 provides as follows:

“1. Everyone has the right to respect for his private ... life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

27. The applicant also claimed that there had been a violation of Article 6 of the Convention on account of the fact that under Moldovan law it was impossible for him to adduce evidence in support of his claim to have his ethnic origin changed from Moldovan to Romanian. Article 6 § 1 of the Convention, in so far as relevant, provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

I. ADMISSIBILITY OF THE COMPLAINTS

28. The Government submitted that the applicant was not a victim of any interference because none of his identity papers contained reference to his ethnic identity. His birth certificate contained a reference only to the ethnic identity of his parents.

29. In any event the applicant had failed to search the archives for traces of Romanian ancestry prior to his grandparents, as indicated by the central civil registration authority (see paragraph 9 above). The Government referred to the Caragheorghi case (see paragraph 22 above) and argued that the applicant alone was responsible for the outcome of the proceedings and that, therefore, the application was improper.

30. The applicant disputed the Government's assertions and submitted that his ethnic identity had been recorded, inter alia, in the State Population Registry's database. He also argued that the impossibility for him to adduce evidence concerning his Romanian ethnic identity was the subject matter of his complaint under Article 6 of the Convention.

31. The Court reiterates that, in order to be able to lodge an application by virtue of Article 34, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 33).

32. In the present case the Court notes that information concerning the applicant's ethnic identity was indicated in his personal entry in the State Population Registry's database. It also appeared in the birth certificates of his children and in other materials such as documents pertaining to matters of criminal justice (see paragraph 20 above). At the same time, the Court considers it impossible to determine the applicant's victim status under Article 8 before determining the question of applicability of that article to his case, an issue which is also disputed by the parties. Therefore, it decides to join the issue