June 21, 2024
By Dr Vesna Stefanovska
On 14 May 2024, the European Court of Human Rights delivered a judgment in the case of Mitrevska v. North Macedonia. The Court ruled that North Macedonia had violated its positive obligations under Article 8 of the Convention as the domestic authorities failed to strike a balance between the competing interests at stake and thus overstepped the margin of appreciation. Moreover, the domestic authorities did not attempt to ascertain whether the applicant’s biological parents or her adoptive parents had expressed a wish that her adoption remain secret.
This post briefly analyzes the reasoning of the European Court of Human Rights (ECtHR or the Court) before delving into the actions (not) taken by the Macedonian authorities and the impact of this judgment on the Macedonian administrative judiciary, especially in light of the process of execution of the judgment and the necessity to prevent similar future violations of the Convention.
The applicant, Ms. Mitrevska, was adopted as a child under a ‘full adoption’ procedure.[1] In 2014, she was diagnosed with depressive anxiety disorder and speech problems after she survived a stroke. Her doctors requested information concerning her family’s medical history to determine whether she had a hereditary disease. She requested a copy of her adoption file and, in particular, the following information: her name before the adoption, her place of birth, her health records, whether she was born within or out of wedlock, the names and addresses of her biological parents, their psychological and health conditions and the reasons for her adoption, the date of her adoption and the case number of the adoption decision, and any important notes in the file.
The Centre for Social Affairs as well as the Adoption Commission denied her request, although she elaborated that the information she was seeking was necessary to establish her history, development, and early childhood. The Commission argued that the Centre for Social Affairs had jurisdiction to deal with the adoptions that occurred before 2004, and the Centre explained that, in accordance with Article 123-a of the Family Act, information concerning full adoptions were an official secret. According to Macedonian law, full adoption terminates all rights and responsibilities between the adoptee and their biological family. However, the applicant never received a formal decision against which she would have the right to submit an appeal.
Because the Commission or the Centre never gave a formal decision to the applicant, she submitted a claim before the Administrative Court for failure to act on the part of the administrative authorities against the Ministry of Labor and Social Policy. The applicant argued that the Commission had been wrong to apply the Family Act because it had not been in force at the time when she was adopted, in 1973. The Administrative Court dismissed the claim, holding that there had been no failure to act by the administrative authorities. It found that the authorities had correctly notified the applicant that under Article 123-a of the Family Act, the information requested was an official secret and that the matter did not concern an issue of rights guaranteed by the Family Act. This judgment was later confirmed by the Higher Administrative Court.
The applicant complained about the inability to obtain information concerning her adoption under Article 8 of the ECHR. She emphasized that at the time of her adoption, the Family Act, which was in force, did not categorize information concerning full adoptions as secret and that the authorities had retrospectively applied the Family Act with its 2004 amendments. The Government, on the other hand, argued that there was no interference with the applicant’s right to private and family life because she had no family life with her biological parents. Moreover, there was no consensus on this issue among the Council of Europe Member States, leading North Macedonia to enjoy a wide margin of appreciation.
The Court’s judgment centered around several issues: (1) striking a balance between competing interests; (2) ensuring respect for the State’s positive obligation to guarantee the rights of the applicant as protected by Article 8 of the ECHR; and (3) the right of the child to know their origins, a right that is derived from the notion of private life.
Regarding the first issue, the Court found that the domestic authorities did not attempt to ascertain whether the applicant’s biological parents or her adoptive parents had expressed a wish for her adoption to remain secret. Access to information concerning one’s biological origins is a sensitive moral and ethical issue that involves striking a balance between private and public interests. Although the State enjoys a wide margin of appreciation when striking such a balance, the Court held that it had not been struck in the case at hand. The Court noted that it had no information available on the legislative process that resulted in the 2004 amendments to the Family Act introducing the rule of secrecy provided for by Article 123-a. In particular, no information was available as to whether and how the legislative authorities balanced the competing interests at stake. The Centre for Social Affairs, the Adoption Commission, and both administrative courts failed to investigate and elaborate on this issue. The second issue concerns the State’s positive obligation to guarantee the applicant’s rights under Article 8. Although there is no precise definition about the boundaries between the State’s positive and negative obligations under Article 8, according to the Court’s reasoning, the applicant’s complaint needs to be examined from the perspective of the positive obligation of the State to ensure effective respect of her rights as protected by Article 8. Third, with respect to the right of the child to know their origins, according to the Court, the individual’s interest in discovering their parentage does not disappear with age – quite the reverse, as expressed in the case of Godelli v. Italy.
The case of Mitrevska v. North Macedonia concerning disclosure of a biological parent’s identity and medical history is the first case of this type against North Macedonia, but we do not believe it will be the last. The case opens possibilities for other applicants in the same or similar situations to lodge an application before the ECtHR.
The Court unanimously found a violation of Article 8 ECHR and reiterated that the right to know one’s parentage falls within the scope of the concept of private life as previously determined in Boljevic v. Serbia and Gauvin-Fournis and Silliau v. France. According to the Court, birth, and in particular the circumstances in which a child is born, forms part of a child’s life and subsequently the adult’s private life, as protected by Article 8 of the Convention.
If we analyze the judgment, we can see that the right of the applicant to know her biological origins is not the central issue. Instead, the main issue concerns what North Macedonia failed to do in this specific case, as mentioned in the previous section of this post.
The Administrative Court, in its judgment (U4-344/2018) does not elaborate on what the Centre for Social Affairs and Adoption Commission failed to investigate but cites Article 123-a of the Family Act, which states that information about biological parents’ identities is considered an official secret. The Administrative Court in its decision U4-344/2018 clarifies that “in this particular case, it is not a matter of exercising rights established by the Family Act, in which case the authorities are obliged to deliver a decision” (Mitrevska, para. 14).The same wording has been used by the Higher Administrative Court in its judgment UZ2-223/2019 (ibid.). This means that both administrative courts considered that the request of Ms. Mitrevska to know the identity of her biological parents and their medical history is not a right because it is not explicitly stipulated in the law and because Article 123-a forbids disclosure of the biological parents’ identity. Moreover, from a domestic perspective, both administrative courts violated Article 6(1) of the General Administrative Proceedings Act, which defines the principle of proportionality in administrative proceedings. It provides that the administrative authority must ensure that the rights and legal interests of a party to administrative proceedings are fulfilled and protected. The administrative bodies and both courts failed to implement the principle of proportionality due to their lack of action, with which they violated the applicants’ rights guaranteed not only by Macedonian laws but also by international conventions.
The question in this matter is not how to execute the judgment (the Government will pay the non-pecuniary damage) but how to prevent similar violations in similar cases until the Family Act is amended.
The Family Act will need to change with respect to Article 123-a as a result of the judgment, but in the meantime, there is no obstacle to the direct implementation of the Convention and the Strasbourg case law. Here we can point to the weakness of both administrative courts in the lack of implementation of the Strasbourg case law. The courts are obliged to implement the Convention and the Strasbourg case law, but they not implement them despite their obligation, although the Law on Courts in Article 18 prescribes that the courts shall directly apply the final and enforceable decisions of the ECtHR and the stands expressed in the final judgments. This is a systematic weakness of the administrative courts and a worrying fact, especially since both administrative courts decide about very specific and sensitive rights, as in the case of the applicant Ms. Mitrevska. The administrative courts are generally reserved regarding the use and citation of ECtHR jurisprudence in their judgments and this practice must change. The administrative bodies and both administrative courts that decided in the first and second instances missed the central point of the case, namely that the access to adoption information should be considered a right established by the Family Act. The secrecy rule does not prevent the administrative bodies to investigate the interests of the applicant in relation to the individual circumstances of the case. This is the reason why the ECtHR established a violation of Article 8 of the ECHR due to the failure of North Macedonia to strike a balance between the competing interests at stake and overstepping its already wide margin of appreciation.
Both administrative courts must directly implement the Strasbourg case law in their work because, according to the Macedonian Constitution (Article 118), the international agreements ratified by the Parliament are an integral part of the Macedonian legal system and cannot be changed by law. North Macedonia belongs to the monist group of states where international agreements are positioned below the Constitution but above the laws. In these particular moments, when a new government is bound to be established soon after the parliamentary elections held on 8 May 2024, amendments to the Family Act do not seem to be one of the top priorities; thus, there is no reason why the administrative courts cannot directly implement the Convention and the Court’s case law.
The Macedonian institutions involved in this case failed to consider the interests of the applicant as an adopted adult, starting with the Centre for Social Affairs and ending with the Constitutional Court, which, in the procedure for challenging the constitutionality of Article 123-a of the Family Act, gave weight only to the general interest, but not to the individual interest of the adopted adult.
The ECtHR’s judgment sends a strong message to the Macedonian authorities and administrative courts. The importance of disclosure of adoption-related information should not be underestimated as the absence of a possibility to obtain access to non-identifying information constitutes violation of the right to private and family life. This means that every case should be approached bearing in mind the applicant’s interests, the general interest ánd states’ positive and negative obligations under Article 8. Time will tell whether the Macedonian courts have learned their lesson by starting with direct implementation of the Convention and the Strasbourg case law. If not, we will soon be writing about similar cases and similar violations of Convention rights by North Macedonia.
[1] According to the Macedonian Family Act, full adoption gives to the adoptee and adopter the rights and responsibilities that original blood relatives had, so that full adoption terminates all rights and responsibilities between the adoptee and their biological family.
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