By Kristin Henrard, Professor of Fundamental Rights, Erasmus Law School, Rotterdam
On 16 May 2019 the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Tasev v North Macedonia regarding the refusal of the authorities to change the ethnic affiliation of a judge in the electoral roll of judges.
The Court concludes to a violation of Article 8 ECHR because the interference would not have a basis in national law. There is indeed a problem with the foreseeability of the application of the invoked national law. However, the case particularly invites closer analysis of the right to free self-identification as protected by article 8 ECHR, more particularly the two dimensions of this right that can be distinguished (free self-identification pure, and free self-identification through the exercise of rights), their respective boundaries and the way in which these two dimensions interrelate.
It is argued that the Court fails to fully grasp the two dimensions of the right to free self-identification (and their interrelation), resulting in the mistaken identification of an interference with article 8 ECHR.
Facts of the case
Unfortunately, the facts of the case are not entirely clear.
When noting the vacancy announcement of five positions for the State Judicial Council (SJC), Tasev, a judge of the Stip Court of Appeal, had submitted a request to the Ministry of Justice to change his ethnic affiliation from Bulgarian (an ethnic minority in North-Macedonia) to Macedonian (the ethnic majority). For the three previous elections for the State Judicial Council Tasev had been registered as Bulgarian.
The Ministry of Justice rejects his request because of its timing, more particularly after the publication of the announcement of the election of new members to the SJC in which he intended to participate as a candidate. Allowing a change of ethnic affiliation after this announcement would put other judges at a disadvantage (par 9).
Tasev’s appeals -first at the Administrative Court, later at the Higher Administrative Court, that this rejection would not have a legal basis, were dismissed (par 13-15).
The State Judicial Council Act clarifies that within five days following the announcement of elections for new members of the State Judicial Council, the electoral roll (administered by the Ministry of Justice) is made available for inspection in all courts. Within another three days every judge is entitled to seek rectification of personal information in respect of themselves, including their ethnic affiliation. The SJC Act would thus seem to enable judges on the electoral roll to change their ethnic affiliation following the announcement of elections (par 23).
The State Judicial Council consists of fifteen members, 8 of which are judges elected from among their peers. Three of these members must belong to ethnic-minority communities. (par 19). Section 13 of the SJC Act clarifies that several lists of candidates are drawn up: four general lists of candidates from judges of the courts in the territorial jurisdiction of the four Courts of Appeal, and a single list of candidates consisting of judges belonging to ethnic minority communities (par 21). Three members are elected from the minority list, and the five other members are to be elected from the general lists of candidates, one member per list (par 22).
While the government does make the point that Tasev ‘had failed to prove that he had been an ethnic Macedonian’(par 31), it also emphasizes that he could have changed his ethnic affiliation if his request had pre- or postdated the announcement of the election in which he had been involved’(par 31). Put differently, under the North-Macedonian legal regime one can change one’s official ethnic identity even without objective substantiation.
The Court’s judgement
The Court confirms that ethnic identity is an element of one’s personal identity protected by article 8 ECHR’s right to respect for one’s private life (par 32). The Court goes on to mark that the right to free self-identification is the cornerstone of international law on the protection of minorities in general, while being supported by article 3, par 1 of the Framework Convention for the Protection of National Minorities (FCNM, par 33). The Court emphasizes that the right to choose not to avail oneself of the status of minority and the related special rights (the ‘negative dimension’ of the right to free self-identification or free self-identification through the exercise of rights) is absolute, while the right to qualify as a member of the minority (the ‘positive dimension’ or free self-identification pure) is limited (par 33).
The Court sees no reason not to follow the government in accepting that the refusal to adapt Tasev’s ethnic identity in the electoral roll amounts to an interference with his private life (par 34).
According to the Court the main reason for the refusal to change the ethnic identity on the electoral rolls for judges was the timing of the applicant’s request, as related to his envisaged participation in the forthcoming elections of the SJC (par 38). However, the Court highlights that the stipulations of the SJC Act clearly imply that requests to adapt one’s ethnic affiliation in the electoral roll can only be made following the announcement of vacancies for the SJC (par 40). The Court thus concludes that the legal basis for the interference was not sufficiently foreseeable (par 40). Hence the interference is not in accordance with the law and constitutes a violation of article 8 ECHR.
The ECHR, minorities and the right to free self-identification
The absence of minority specific rights in the ECHR has not withheld members of minorities to formulate claims before the ECtHR. The Court has since its famous Chapman judgement (18 January 2001) referred a few times to the Framework Convention for the Protection of National Minorities as source of inspiration when interpreting the Convention in relation to persons belonging to minorities. Even so, it is well documented that the Court tends to scrutinize lightly complaints about a lack of special treatment attuned to the minority’s needs, going hand in hand with the grant of a broad margin of appreciation to states.
The Tasev case revolves around the right to free self-identification, which is generally accepted to be a right of cardinal importance to minorities and minority protection. As is confirmed by Tasev, the exact contours of this right are far from crystal clear though.
So far the Court has had few cases in which the right to free self-identification of persons belonging to minorities were addressed. Whereas the previous cases strongly revolved around one particular dimension of free self-identification, the Tasev case invites a closer consideration of both dimensions of the right to free self-identification and their interrelation. Ciubotaru (27 April 2010) concerned self-identification as a person belonging to a particular minority (self-identification pure): the Moldovan government refused to accept proof of membership of a particular ethnic minority in relation to the ethnicity entry in the Moldovan identity card. The Court acknowledged that there needs to be an objective basis for self-identification with a minority group but emphasized that the government needs to allow the proof thereof. Molla Sali (19 December 2018) rather concerned self-identification in terms of the choice whether or not to avail oneself of the special minority rights one is entitled to as member of a minority (self-identification through the exercise of rights). Notwithstanding the explicit choice by a Muslim testator to opt out of sharia family law by adopting a will in favour of his wife following general civil law, the national Courts had applied Sharia law to the inheritance (to the disadvantage of the Muslim widow). Also in this case the Court emphasized the crucial importance of the right to free self-identification, particularly in relation to the choice not to exercise the special minority rights (par 157-159).
How free is the right to free self-identification?
The right to free self-identification pure is particularly important because it ensures that persons cannot be qualified by the government as a minority against their will. This can be related to one of the generally accepted elements of a definition of the concept ‘minority’, namely that a group can only be considered a minority when it has the wish to hold on to that separate identity and when it thus chooses not to assimilate. Relatedly, when a particular person chooses to assimilate, he/she can no longer be considered a member of the minority. Self-identification pure thus has a strong subjective dimension.
At the same time, and as confirmed by the FCNM, it is obvious that this subjective choice is not entirely free, and requires an objective basis. For instance, it seems intuitively wrong that one could self-identify as Roma without any ethnic affiliation with the Roma community. Monitoring the boundaries of free self-identification pure is particularly important when special minority rights are attached to the status. Nevertheless, the demarcation of the exact boundaries of the right to free self-identification pure and their application are fraught with difficulties. This difficulty is inter alia related to the many degrees to which one can identify with a particular language, religion or ethnicity, particularly in the current mobile world where multiple identities abound. For example, can one self-identify as member of a linguistic minority when one’s ancestors belong to this linguistic minority and one can understand but not speak the minority language concerned? At the same time, boundaries to free self-identification are prone to abuse by the government and it is thus equally important that the way in which the government applies these boundaries is monitored properly.
The right to free self-identification through the exercise of rights can translate into a choice to invoke the application of general law. This dimension of the right to free self-identification is absolutely free. Nevertheless, also here questions arise, such as about the possibility to change one’s mind, to choose differently for different spheres of life etc.
Picking up on the FCNM as source of inspiration for the interpretation of ECHR rights in relation to persons belonging to minorities, it should be noted that during the negotiations for the FCNM many discussions focused on the formulation of the right to free self-identification. In the end, only the free self-identification through the exercise of rights was maintained in the actual text of the convention, more particularly article 3, paragraph 1: ‘every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such’. The Explanatory Report though adds a clarification about free self-identification pure, more particularly highlighting that ‘the individual’s subjective choice is inseparably linked to objective criteria relevant to the person’s identity’ (para 35). In the mean time further clarifications can be found in the supervisory practice under the FCNM, more particularly in the Fourth Thematic Commentary on the Scope of Application of the FCNM. While the non-absolute nature of free self-identification pure is confirmed, self-identification is the starting point, which would only in exceptional circumstances not be decisive (par 10). Little additional clarification is given about these exceptional circumstances. It is stipulated that if an identification with a minority would solely be sought in order to obtain an advantage, this identification would not be in good faith (par 10). This thematic commentary highlights the absolute nature of the right to free self-identification through exercise of rights, which would also mean that changes (different choices) over time and over different spheres of life are acceptable (par 10-12). This variability does not seem envisaged for the right to free self-identification pure, with the exception maybe of a gradual assimilation by choice.
Zooming in on the Tasev case
The ECtHR in Tasev does not say much about the right to free self-identification pure, only that it is ‘limited’: the limited nature of free self-identification pure is confirmed by a ‘quiet’ reference to the article 3 FCNM and the Explanatory Report (by referring to paragraphs in its own judgement with quotes thereof). The government emphasizes that its refusal to adapt the ethnic affiliation of Tasev in the election rolls is merely the timing of the request. However, the overview of the facts already noted that this argument is contrary to the wording of the SJC Act. The government does note that Tasev ‘ failed to prove that he had been an ethnic Macedonian’ (par 31) but it maintains that if he would have asked at a different time, his request would have been granted (par 31). As the Court remarks, neither the Ministry of Justice in its rejection, nor the Administrative Courts in their review indicated that Tasev needed to provide (and lacked) an objective substantiation of his request to change his ethnic affiliation (par 37).
What makes this case interesting is that it remains unclear why Tasev wants to change his ethnic affiliation to Macedonian now, after having self-identified as Bulgarian in three previous electoral rolls. There is no hint at a gradual assimilation by choice. Since Tasev always had the opportunity to be put on one of the general lists, even when he was identified as an ethnic minority (section 12 SJC Act), it is unclear what extra electoral rights or possibilities he would gain by qualifying as Macedonian. He rather seems to reduce his chances for election: from the minority list three members are selected, while from the general lists only one member each.
It should also be highlighted that this is not a case of a member of a minority who is not allowed to be officially identified as such, but rather a person who is officially registered as a member of a minority and now wants to be registered as a member of the ethnic majority. Nevertheless, also this self-identification pure cannot be solely subjective, and requires an objective basis.
Arguably the Court does not properly demarcate the two dimensions of the right to free self-identification. It remains unclear and certainly doubtful whether Tasev can objectively substantiate his claim to be an ethnic Macedonian. His self-identification would thus seem to transgress the boundaries of the right to free self-identification pure. Only persons that properly self-identify as member of a minority have subsequently the right to choose whether or not to avail themselves of the special minority rights (free self-identification through exercise of rights). Hence, dissenting opinion of Judge Wojtyczek seems on point where it underscores that since article 8 ECHR does not enshrine a right to an arbitrary choice to an ethnic identity, no interference took place. Obviously, when there is no interference, there is no need to investigate a possible justification thereof.
The government may concede an interference (par 37), it is still important that the Court identifies the boundaries of the rights that are protected by the ECHR, especially when the claimant incorrectly invokes an absolute right to self-identification pure.
The Tasev judgment is a peculiar read, and certainly one that leaves a sense of dissatisfaction, on the one hand because the position of the parties (and their ‘problems’) remains unclear and on the other because the Court fails to take the opportunity to clarify the boundaries of the right to self-identification pure. The preceding analysis of the case indeed shows how it raises controversial questions about the limits of the right to free self-identification pure. Maybe the Court tried to avoid these by opting to settle the case because of a lack of proper legal basis. Hopefully the Court will rise to the occasion at the next opportunity.