Communicated on 22 April 2016
FIRST SECTION
Application no. 9825/13
Slavčo TASEV
against the former Yugoslav Republic of Macedonia
lodged on 30 January 2013
STATEMENT OF FACTS
The applicant, Mr Slavčo Tasev, is a Macedonian national, who was born in 1959 and lives in Štip. He is represented before the Court by Ms L. Taseva, a lawyer practising in Štip.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings for rectification of the applicant’s ethnicity on the Judicial Electoral Roll
The applicant is a judge of the Štip Court of Appeal.
On 21 September 2012 a notice was published of an election for five positions on the State Judicial Council (“the SJC”) of judges from among their peers. A putative member of the SJC had to be judge of the courts within the territorial jurisdiction of the Štip Court of Appeal. None of the requirements for the post concerned the candidates’ ethnicity.
On 28 September 2012 the applicant requested that the Minister of Justice modify the Judicial Electoral Roll by changing his declared ethnicity from “Bulgarian” to “Macedonian”.
On 15 October 2012 the Judicial Electoral Roll was made available in the Štip Court of Appeal for inspection. Since the applicant’s ethnic designation had not been changed, on the same date he lodged a fresh request for its rectification. In this connection he argued that “ethnic affiliation is a right of every citizen and nobody can dispute one’s ethnicity”.
By a decision of 18 October 2012, the Minister of Justice dismissed the applicant’s request. The relevant parts of the decision read as follows:
“... [the applicant’s] requests for a change in the details on the Judicial Electoral Roll regarding ‘ethnicity’ were submitted after the announcement of an election of members of [the SJC] had been published. The requested change cannot be made because it [is sought] for the attainment of a(n) [electoral] right concerning membership of [the SJC]. The change of ethnicity sought exclusively for the attainment of another right, after the announcement for the election of members of the SJC, puts other judges, who attain their right related to the election of members of [the SJC], in a disadvantageous position.”
The applicant challenged this decision before the Administrative Court arguing that the Minister’s decision had not been based on any statutory grounds. In particular there was no provision preventing him from changing his ethnicity on the Judicial Electoral Roll while the election of members of the SJC was ongoing. He further submitted that self-declaring his ethnicity was his personal right and the Minister could not disregard his affiliation in this regard. The conclusion that his request would put other judges in a disadvantageous position had been unreasonable and unsubstantiated.
On 26 October 2012 the Administrative Court upheld the Minister’s decision and the given reasons. It further added that:
“... [the applicant’s] requests for rectification post-dated the announcement of the election of members to [the SJC]. The requested change cannot be regarded a ‘rectification’ since it does not concern a change of numbers, names or other obvious errors, but it concerns a detail which [the applicant] provided. He enjoyed rights concerning the election of members of [the SJC] as [an individual] of Bulgarian ethnicity. That was established on the basis of extracts of the Judicial Electoral Roll of October 2006, December 2008 and July 2010 submitted together with the observations in reply to [the applicant’s] claim. In these three Judicial Electoral Rolls [the applicant] declared himself ‘Bulgarian’. That means that there has been no violation of his right to declare his ethnicity.”
The applicant appealed against this decision arguing that it contained no reason as to why he had been prevented from declaring his ethnicity as Macedonian. He contested as unreasonable the finding that his request concerned the election of members of the SJC and that such a change would put other judges involved in that election in a disadvantageous position. It was unclear how, by what means, and which judges would have been put in such a position. In this connection he maintained that his application for election as a member of the SJC had not been related to his request to have his ethnicity on the Judicial Electoral Roll changed. He also reiterated his arguments that self-identifying his ethnicity was his personal right. It was irrelevant to which ethnicity he had been affiliated in 2006, 2008 and 2010 and what electoral rights he had attempted to attain in the past as a Bulgarian. Lastly, he complained that he had not been given the opportunity to comment on the Judicial Electoral Rolls of 2006, 2008 and 2010, which the Ministry of Justice had submitted in evidence and on which the Administrative Court had relied in its decision.
On 5 November 2012 the Higher Administrative Court dismissed the applicant’s appeal finding no grounds to depart from the established facts and the reasons contained in the lower court’s decision. It did not comment on the applicant’s complaint that he had not been given the opportunity to acquaint himself with and comment on the evidence (the Judicial Electoral Rolls of 2006, 2008 and 2010) submitted by the Ministry of Justice.
2. Other relevant information
On 5 October 2012 the applicant submitted himself for election as member of the SJC. On an unspecified date, he submitted a written statement that he was of Macedonian ethnicity and that his application for election to the SJC had been made with regard to the general list of judges in the courts within the territorial jurisdiction of the Štip Court of Appeal.
By a letter of 3 December 2012, the SJC informed the applicant that it had struck his name out of the general list of candidates for election to the SJC to be selected from judges in the courts within the territorial jurisdiction of the Štip Court of Appeal. It decided to do so after it had established that his statement regarding his ethnicity had not corresponded with the official records according to which since 1995 he had been of Bulgarian ethnicity. The SJC further referred to the decisions by which the Minister and the Administrative Court had dismissed his request for rectification of the “ethnicity” designation on the Judicial Electoral Roll.
B. Relevant domestic law
State Judicial Council Act
Section 17 of the Act concerns the Judicial Electoral Roll. It is administered by the Ministry of Justice and it contains personal information about judges including their ethnicity (национална припадност). Within five days of elections for members of the SJC being announced, the Judicial Electoral Roll is made available for inspection and every judge is entitled to seek rectification of the details thereon for a further three days. The Minister of Justice decides upon such a request within three days. His or her decision can be subject to an appeal in administrative-dispute proceedings.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the evidence submitted by the Minister of Justice and on which the Administrative Court relied upon in its decision was not communicated to the applicant. He was thus not given the opportunity to analyse and comment on that evidence. He also complains about the authorities’ refusal to change his ethnicity on the Judicial Electoral Roll, which was his personal right.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case? If so, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the proceedings before the Administrative Court? Specifically was he given the opportunity to comment on the evidence which the Minister of Justice had submitted in reply to the applicant’s action against his decision of 18 October 2012?
2. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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