First decision of the Court against Northern Macedonia with the state’s new name. Judge and change of nationality
JUDGMENT
Τasev v. North Macedonia 16.05.2019 (no. 9825/13)
SUMMARY
Change of ethnicity. Denial to a judge on his request to change his ethnicity. Removal from the list of candidates for the State Judicial Council (SJC). The Court considered in particular that the interpretation of the domestic law by the national authorities was not foreseeable, since there was no law that could be interpreted as preventing judgesm participating in the elections to the State Judicial Council from correcting their personal data (including their ethnic origin) after the election. Infringement of Article 8 (right to respect for private and family life).
The Court further held, unanimously, that Mr Tasev’s complaint under Article 6 (right to a fair trial)
about not having been acquainted with evidence had to be rejected as inadmissible. It found that documents submitted as evidence by the Ministry of Justice in the domestic proceedings had been of no importance for the outcome of the case. Accordingly, Mr Tasev had not suffered a significant disadvantage because the courts had failed to communicate that evidence to him.
THE IMPORTANCE OF THE CASE
This decision is the first to be issued by the ECtHR against the Republic of Northern Macedonia, using the new official name of that State.
PROVISIONS
Article 8
Article 6
PRINCIPAL FACTS
The applicant, Slavcho Tasev, is a Macedonian/citizen of the Republic of North Macedonia who was
born in 1959 and lives in Štip (North Macedonia).
In September 2012 a vacancy notice was published for five posts on the State Judicial Council (SJC).
Shortly afterwards Mr Tasev lodged a request with the Ministry of Justice for his ethnicity entry in
the electoral roll to be changed from Bulgarian to Macedonian. In October 2012 the Ministry of
Justice refused his request, arguing in particular that the change was intended to secure the
attainment of an electoral right concerning the election of members of the SJC. A change of ethnicity
entry sought exclusively for the attainment of such a right after the announcement for the election
would put other judges in a “disadvantageous position”.
Mr Tasev appealed, but the Administrative Court upheld the Ministry’s decision. The court mainly
referred to the electoral rolls of 2006, 2008 and 2010 – submitted as evidence by the Ministry of
Justice – in which Mr Tasev’s ethnic identity as Bulgarian was established.
Mr Tasev appealed against this decision to the Higher Administrative Court, but his appeal was
dismissed in November 2012. The judgment stated that a modification of his ethnicity would leave
other judges in a “disadvantageous position”. The applicant, “as a Bulgarian, enjoyed rights related
to the election of members to the SJC” given the fact that he had declared himself in the electoral
rolls of 2006, 2008 and 2010 as Bulgarian. The court also referred to the provisions that it deemed to
be relevant for its decision.
In December 2012 the SJC informed him that it had struck his name off the list of candidates for
election to the SJC because his declared ethnicity (Macedonian) did not correspond with the official
records.
THE DECISION OF THE COURT
Article 8
The Court observed that the Government had not denied that the authorities’ refusal to change Mr
Tasev’s ethnicity entry in the electoral roll had amounted to an interference with his “private life”
within the meaning of Article 8.
The Court then examined whether that interference had been compatible with the requirements of
Article 8 § 2, in particular whether it had been “in accordance with the law”.
It observed that the authorities had declined to grant Mr Tasev’s request on the following grounds:
(1) it had been submitted after the election of new members to the SJC had been announced; (2) it
had related to the applicant’s electoral rights in the forthcoming election of the SJC; and (3) it would
have put other judges involved in those elections at a disadvantageous position.
The Court noted that the main reason for the refusal had been the timing of his request, seen within
the context of his participation in the election.
The Court also noted that section 17 of the State Judicial Council Act specified the procedural rules
under which judges could seek to rectify the records of their details, including their ethnicity. In the
Court’s view, there had been nothing in that provision that could be interpreted as preventing
judges running for election from seeking to rectify their personal details in the electoral roll,
subsequent to the announcement of such an election. The domestic authorities had thus cited and
applied an interpretation of that provision which could not be said to have been predictable.
Furthermore, Mr Tasev had had no reason to expect, in the absence of any clause to that effect, that
his request would fail on those grounds. Accordingly, the legal basis for the refusal had not been foreseeable. Since the interference had not been “in accordance with the law”, there had been a
violation of Article 8.
Article 6
The Court noted that Mr Tasev’s complaint under this head concerned only documents submitted in
evidence by the Ministry of Justice, notably extracts from the electoral rolls of 2006, 2008 and 2010.
However, in the Court’s opinion, that evidence had not involved observations on the merits of the
claim, but had been objective pieces of evidence of which he must have had knowledge.
Moreover, the evidence at issue had not manifestly influenced the courts’ decision. It had been of no
importance for the outcome of his case and the Administrative Court’s findings on the merits of his
claim. For those reasons, the Court found that Mr Tasev had not suffered a significant disadvantage
because of the domestic courts’ failure to serve that evidence on him.
Lastly, the Court added that the case had been duly considered by the domestic courts at two levels
of jurisdiction and that respect for human rights did not require an examination of the complaint on
the merits. Accordingly, it had to be declared inadmissible.
Just satisfaction (Article 41)
The Court held that North Macedonia was to pay the applicant 4,500 euros (EUR) in respect of
non-pecuniary damage and EUR 1,800 in respect of costs and expenses.
Separate opinion
Judge Wojtyczek expressed a partly dissenting opinion(echrcaselaw.com editing).
