Information Note on the Court’s case-law 229
May 2019
Tasev v. North Macedonia - 9825/13
Judgment 16.5.2019 [Section I]
Article 8
Article 8-1
Respect for private life
Refusal to register a change in a candidate’s self-declared ethnicity in a period of election, with no foreseeable legal basis: violation
Facts – In September 2012 a vacancy notice was published in respect of posts on the State Judicial Council (“the SJC”) to be filled by sitting judges elected from among their peers. Ethnicity was not among the stated requirements for the posts. The applicant, a judge who attempted to stand as a candidate, requested that his ethnicity entry in the electoral roll be changed from Bulgarian to Macedonian. The Ministry of Justice and courts at two levels of jurisdiction declined to grant that request on the following grounds: (i) it had been submitted after the announcement of the election of new members to the SJC had been published; (ii) it had related to the applicant’s electoral rights in the forthcoming election for new members to the SJC; and (iii) it would have put other judges involved in the election at a disadvantageous position.
Law – Article 8: The Court had previously held that ethnic identity was a detail pertaining to an individual’s identity that fell within the personal sphere protected by Article 8. Referring to its recent considerations about the positive and negative aspects of the right to free self-identification of members of national minorities in international law — not only in the Council of Europe Framework Convention for the Protection of National Minorities —, the Court also reiterated that any member of a national minority had a full right to choose not to be treated as such.
In view of the fact that the domestic law entitled (and required) judges to declare their ethnic identity in the electoral roll within the context of elections to the SJC, the authorities’ refusal to change the applicant’s ethnicity entry in the electoral roll had amounted to an interference with his “private life”.
Given the absence of any requirement such as the objective substantiation of the applicant’s self-declared ethnicity, the main reason for the impugned refusal appeared to have been the timing of the applicant’s request, seen within the context of his participation as a candidate in the forthcoming election to the SJC.
However, neither of the provisions referred to by the Higher Administrative Court concerned the electoral roll or the rectification of details contained therein; actually, such issues were regulated by other provisions, namely those of section 17 of the State Judicial Council Act. Nor had it been argued that any other legal avenue was open to the applicant in respect of his request.
Under the said section 17 of the Act, any request for the rectification of recorded details, including the designation of their ethnicity, was to be lodged after the electoral roll had been made available for inspection, which, in itself, could occur only after the public announcement of the forthcoming election of new members to the SJC. That provision was couched in general terms and applies to all judges whose personal details were recorded in the electoral roll. It contained no clause that further specified or limited its applicability or made it dependent on, for example, certain circumstances that apply to the claimant in the present case. Indeed, there was nothing in that provision that could be interpreted as preventing (that is to say excluding) judges running for election to the SJC from seeking the rectification of their personal entries in the electoral roll (including their respective ethnicity designations) subsequent to the publication of the announcement of such an election. However, the authorities did opt for such an interpretation, which cannot be said to have been predictable. Furthermore, the applicant could not reasonably have expected, in the absence of any clause to that effect, that his request would fail on those grounds.
Accordingly, although it was accessible, the legal basis on which the impugned refusal rested was not foreseeable.
Conclusion: violation (six votes to one).
Article 41: EUR 4,500 in respect of non-pecuniary damage.
(See also, as for ethnic identity falling within the ambit of Article 8 of the Convention, Aksu v. Turkey [GC], 4149/04 and 41029/04, 15 March 2012, Information Note 150, and S. and Marper v. the United Kingdom [GC], 30562/04 and 30566/04, 4 December 2008, Information Note 114; as for considerations on the negative aspect of the right to free self-identification of members of national minorities, Molla Sali v. Greece [GC], 20452/14, 19 December 2018, Information Note 224; and as for refusal to record the applicant’s declared ethnic identity in the State Population Registry database, Ciubotaru v. Moldova, 27138/04, 27 April 2010, Information Note 129)
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This summary by the Registry does not bind the Court.
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