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CIUBOTARU v. MOLDOVA - 27138/04 [2010] ECHR 638 (27 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/638.html
Cite as:
[2010] ECHR 638
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FOURTH
SECTION
CASE OF CIUBOTARU v. MOLDOVA
(Application
no. 27138/04)
JUDGMENT
STRASBOURG
27 April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ciubotaru v.
Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27138/04) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mr Mihai Ciubotaru (“the
applicant”), on 19 July 2004.
The
applicant was represented among others by Mr V. Maximov, a lawyer
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
The
applicant alleged, in particular, a breach of his right to respect
for private life as a result of the authorities' refusal to register
his ethnicity as declared by him.
On
5 September 2006 the Court decided to give notice of the application
to the Government. On 30 September 2008 it also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Chişinău. He is a
writer and a professor of French.
The applicant's parents, Dumitru Ciubotaru and the late
Sofia Caraiman were born in 1927 and 1928 respectively, in Bălţi,
province of Bessarabia, Romania. Their Romanian civil status
documents did not contain any information concerning their ethnic
identity. In their marriage certificate issued by the Soviet
authorities in 1949, the entry for ethnicity was left blank. However,
the applicant's birth certificate issued by the Soviet authorities in
1952 recorded his parents as ethnic Moldovans. On the applicant's
mother's birth certificate issued by the Soviet authorities in 1965
the ethnicity was also left blank. Later, the applicant's parents
were recorded as ethnic Moldovans on their Soviet identity cards
issued in 1976 and 1979, in accordance with applications completed
and signed by them in which Moldovan ethnicity was indicated. On his
Soviet identity card the applicant was also indicated as an ethnic
Moldovan.
In
2002 the applicant applied to the Moldovan authorities to have his
old Soviet identity card replaced by a Moldovan identity card. On the
application form he wrote “Romanian” under ethnicity.
However, he was told that his application would not be accepted
unless Moldovan ethnicity was indicated on it. The applicant
complied.
Shortly
thereafter the applicant wrote to the local civil registration
authority and requested, inter alia, that his ethnicity entry
be changed from Moldovan to Romanian. In an answer dated 11 February
2003 the applicant was informed that since his parents were not
recorded as ethnic Romanians in their birth and marriage
certificates, it was impossible for him to be recorded as an ethnic
Romanian.
On an unspecified date the applicant wrote to the
central civil registration authority and again requested that his
ethnic identity entry be changed from Moldovan to Romanian. In an
answer of 2 July 2004 he was informed that Romanian ethnicity had not
been indicated in his parents' documents and that, therefore, he
could not claim such an ethnic identity. He was advised to search the
National Archives for traces of Romanian origin of his grandparents
and other ancestors. The applicant wrote numerous complaints to the
Prime Minister, the President of the country and other officials, but
to no avail.
On
26 July 2004 the applicant initiated proceedings against the State
authority responsible for civil registration and identity papers and
requested, inter alia, that his ethnicity entry and that of
his parents be changed to Romanian in the State Population Registry
database and in his identity papers. He argued that he did not
consider himself to be an ethnic Moldovan and that it was contrary to
his right to freedom of conscience and to his personal dignity to be
considered part of an ethnic group which he believed to be an
artificial creation of the Stalinist regime.
On
15 November 2004 the Rascani District Court dismissed the applicant's
action on the ground that he had failed to prove that his parents
were of Romanian ethnic identity as no such identity had been
recorded in their identity papers. The applicant appealed and relied,
inter alia, on the provisions of the Law on National
Minorities (see paragraph 15 below) and on Article 8 of the
Convention.
On
15 December 2004 the Chişinău Court of Appeal dismissed the
applicant's appeal on the same grounds, stating that the applicant
had failed to prove that his parents were ethnic Romanians. The
applicant lodged an appeal on points of law with the Supreme Court of
Justice.
On 6 April 2005 the Supreme Court of Justice dismissed
the applicant's appeal on points of law and pointed out that
according to section 68 of the Law on Documents pertaining to Civil
Status (see paragraph 16 below) it was impossible to change his
parents' ethnic identity to Romanian because in none of their
identity papers had Romanian ethnicity been indicated.
II. RELEVANT NON-CONVENTION
MATERIAL
A. Relevant domestic law
The relevant provision of the Constitution of the
Republic of Moldova reads:
Article 10 - The unity of the people and the right to
identity
“...
(2) The State recognises and guarantees to all the
citizens the right to preserve, develop and express their ethnic,
cultural, linguistic and religious identity.”
Law no. 382 of 19 July 2001 on the Rights of Persons
belonging to National Minorities, in so far as relevant, reads:
Section 1
“Within the meaning of the present law, persons
belonging to national minorities shall be all persons who live on the
territory of the Republic of Moldova, who are its citizens, who have
ethnic, linguistic, cultural and religious particularities which make
them distinguishable from the majority of the population – the
Moldovans – and who consider themselves as having a different
ethnic origin.”
Section 2
“Any person belonging to a national minority shall
have the right to choose freely whether or not he or she belongs to
that minority. Such a choice or the exercise of rights related
thereto shall not put the person in a disadvantageous situation.”
Law no. 100 of 26 April 2001 on Documents pertaining
to Civil Status, in so far as relevant, reads:
Section 30
“The following information shall be indicated in a
birth certificate:
(a) personal numeric code;
(b) the surname, given name, date and place of birth of
the child;
(c) the surnames, the given names and the ethnic origin
of the parents;
(d) the date of issue of the birth certificate and its
number;
(e) the issuing authority of the birth certificate; ...”
Section 66
“(1) Applications for modification and
rectification of documents pertaining to civil status shall be lodged
with the Civil Status Office for the applicant's place of residence.
(2) The Civil Status Office shall uphold an application
for modification and rectification of documents pertaining to civil
status if:
(a) the document pertaining to civil status contains
errors, blank sections, abbreviations or spelling mistakes, or if it
lacks data; or
(b) the rules concerning the creation of documents
pertaining to civil status have been breached; or
(c) the applicant possesses an official document proving
a change of gender.”
Section 68
“It shall be impossible to rectify the ethnic
identity of one's parents in their children's birth certificates, on
the basis of identity papers of grandparents or other ascendants, if
the parents' civil status documents do not contain information
concerning the requested ethnic identity.”
Government Decision no. 333 of 18 March 2002 lists the
information which must be included in the personal entry of each
individual in the State Population Registry database. It provides,
inter alia, that information such as blood group, colour of
eyes, height, studies, ethnic identity and a specimen of signature
have to be indicated in respect of every citizen. No information
about an individual's religion is required.
B. Collection and recording of ethnic data in Moldova
During
Romanian rule between the two World Wars no ethnic data were
collected or recorded by the State and the identity papers issued by
the Romanian authorities did not contain any information concerning
the bearer's ethnic identity.
After
the territory of Moldova became part of the Soviet Union, the Soviet
authorities recorded and indicated in each individual's identity
papers his or her ethnic identity. The ethnic identity was determined
on the basis of the individual's parents' ethnic identities. If the
parents had different ethnic identities, the individual had to opt
for one of them when receiving his first identity card at the age of
sixteen. There was no possibility of subsequently changing one's
ethnic identity in identity papers or in the civil records. The
ethnic identity of the representatives of the main ethnic group of
the MSSR was normally registered as Moldovan. Only in very few cases
was it registered as Romanian and it is not clear what criteria were
adopted for such a distinction.
The
Soviet practice of collecting and recording ethnic data was
perpetuated by the Moldovan authorities after independence, with the
difference that no information concerning ethnic origin was inserted
in the new Moldovan identity cards. Information about ethnic identity
is recorded in each individual's personal entry in the State
Population Registry database (see paragraph 17 above) and does not
appear on any identity papers issued to individuals or on birth,
marriage, divorce or death certificates. It only appears on the birth
certificates of an individual's children under “parents”.
Information concerning individuals' ethnic identity also appears in
criminal judgments and in various documents issued by the prosecuting
authorities where the ethnic identity of the participants in criminal
proceedings, such as defendants, victims and witnesses, is mentioned.
It also appears in the old Soviet passports which are still valid in
Moldova and which are usually used by persons with very limited
financial resources.
As
in the Soviet Union, an individual's ethnic identity is recorded by
the Moldovan authorities on the basis of the ethnic identities of his
or her parents or the identity of one parent if they differ. When
applying for identity papers, each individual is requested to
complete a form with various personal details such as height, colour
of eyes, blood group, mother tongue, ethnic identity and others. In
practice, applications are rejected if the ethnic identity indicated
in the form by the applicant is not based on that of his or her
parents. It is impossible under Moldovan law to change one's ethnic
identity without changing the ethnic identity of one's parents and it
is impossible to change the ethnic identity of one's parents on the
basis of entries in the identity papers of one's grandparents (see
paragraph 16 above).
C. Relevant case-law of the domestic courts and ethnic
statistics
The
Government submitted a domestic court judgment dating from June 2006
in the case of Caragheorghi where a person had succeeded in
having his ethnic identity changed from Gagauz to Greek. Neither of
his parents were registered as ethnic Greeks; however, the court
accepted evidence concerning one of his ancestors, born in 1822, who
was a Greek from the Ottoman Empire.
According to a press release of the National Bureau of
Statistics of the Republic of Moldova, according to the latest census
conducted in 2004, the country had the following ethnic composition:
75.8% Moldovan, 8.4% Ukrainian, 5.9% Russian, 4.4% Gagauz, 2.2%
Romanian, 1.9% Bulgarian and 0.1% other ethnic origins.
D. Activity of International Organisations
The
relevant provisions of the Framework Convention for the Protection of
National Minorities of 1995, which entered into force in respect of
Moldova on 1 February 1998, provide as follows:
Article 3
“Every person belonging to a national minority
shall have the right freely to choose to be treated or not to be
treated as such and no disadvantage shall result from this choice or
from the exercise of the rights which are connected to that choice.”
The
relevant part of the document of the Copenhagen Meeting of the
Conference on the Human Dimension of the CSCE/OSCE of 1990 reads as
follows:
“Persons belonging to national minorities have the
right freely to express, preserve and develop their ethnic, cultural,
linguistic or religious identity and to maintain and develop their
culture in all its aspects, free of any attempts at assimilation
against their will.”
THE LAW
The
applicant claimed that there had been a violation of Article 8 of the
Convention on account of the fact that when collecting and recording
information concerning his identity the authorities had refused to
register his Romanian ethnic identity and forced on him an ethnic
identity with which he did not identify. The relevant part of Article
8 provides as follows:
“1. Everyone has the right to respect
for his private ... life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
applicant also claimed that there had been a violation of Article 6
of the Convention on account of the fact that under Moldovan law it
was impossible for him to adduce evidence in support of his claim to
have his ethnic origin changed from Moldovan to Romanian. Article 6 §
1 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
I. ADMISSIBILITY OF THE COMPLAINTS
The
Government submitted that the applicant was not a victim of any
interference because none of his identity papers contained reference
to his ethnic identity. His birth certificate contained a reference
only to the ethnic identity of his parents.
In
any event the applicant had failed to search the archives for traces
of Romanian ancestry prior to his grandparents, as indicated by the
central civil registration authority (see paragraph 9 above). The
Government referred to the Caragheorghi case (see paragraph 22
above) and argued that the applicant alone was responsible for the
outcome of the proceedings and that, therefore, the application was
improper.
The
applicant disputed the Government's assertions and submitted that his
ethnic identity had been recorded, inter alia, in the State
Population Registry's database. He also argued that the impossibility
for him to adduce evidence concerning his Romanian ethnic identity
was the subject matter of his complaint under Article 6 of the
Convention.
The
Court reiterates that, in order to be able to lodge an application by
virtue of Article 34, a person, non-governmental organisation or
group of individuals must be able to claim to be the victim of a
violation of the rights set forth in the Convention. In order to
claim to be a victim of a violation, a person must be directly
affected by the impugned measure. The Convention does not, therefore,
envisage the bringing of an actio popularis for the
interpretation of the rights set out therein or permit individuals to
complain about a provision of national law simply because they
consider, without having been directly affected by it, that it may
contravene the Convention (see Burden v. the United Kingdom
[GC], no. 13378/05, §§ 33).
In
the present case the Court notes that information concerning the
applicant's ethnic identity was indicated in his personal entry in
the State Population Registry's database. It also appeared in the
birth certificates of his children and in other materials such as
documents pertaining to matters of criminal justice (see paragraph 20
above). At the same time, the Court considers it impossible to
determine the applicant's victim status under Article 8 before
determining the question of applicability of that article to his
case, an issue which is also disputed by the parties. Therefore, it
decides to join the issue of victim status to the merits of the case.
In
so far as the Government's submission concerning the applicant's
failure to search the archives could be considered to be an objection
concerning a failure to exhaust domestic remedies, the Court notes
that the domestic law distinctly states that an individual's ethnic
identity cannot be changed on the basis of the ethnic identity of his
or her grandparents or other ascendants if the civil status documents
of his or her parents did not indicate such identity (see paragraph 16
above). It would therefore appear pointless for the applicant to
search the archives for information about the ethnic origin of his
ancestors. The Court notes that the solution given in the case of
Caragheorghi by the domestic courts appears, on the face of
it, to be at odds with the provisions of section 68 of the Law on
Documents pertaining to Civil Status (see paragraph 16 above), a
provision to which the Supreme Court of Justice made express
reference when dismissing the applicant's appeal on points of law
(see paragraph 13 above). In such circumstances, the Court considers
that the applicant's complaints cannot be declared inadmissible for
non-exhaustion of domestic remedies.
The
Court finally notes that in his initial application the applicant
also complained under Article 9 of the Convention. However, in his
observations on the admissibility and merits, he asked the Court not
to proceed with the examination of this complaint. Accordingly, the
Court will not examine it.
Since
the applicant's complaints under Article 6 and under Article 8 of the
Convention raise questions of fact and law which are sufficiently
serious for their determination to depend on an examination of the
merits and since no other grounds for declaring them inadmissible
have been established, the Court declares them admissible. In
accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. Submissions of the parties
1. The applicant's arguments
The
applicant submitted that ethnic identity, exactly like gender
identification and sexual orientation, fell within the notion of
private life and that Article 8 of the Convention was therefore
applicable to his case.
The
applicant considered that the Moldovan ethnic identity had been
created artificially by the Soviets and perpetuated by the new
Moldovan authorities for political reasons. He felt humiliated as a
result of being forced to assume an ethnic identity which was
contrary to his philosophy and his inner belief about his true
identity.
In
the applicant's view, the present case could be examined both from
the perspective of the State's negative obligations and from that of
its positive obligations under Article 8 of the Convention. In his
submission, the forced imposition of the Moldovan ethnic identity on
him constituted an interference with his right to identity and
consequently with his right to respect for his private life.
Alternatively, the applicant considered that the authorities had a
positive obligation to allow him freely to choose his association
with any cultural group, including Romanian, without being required
to provide evidence.
The
applicant, who focused in his submissions on the State's negative
obligations, believed that since his parents' ethnic identity had not
been recorded in their birth certificates, the Moldovan State had to
refrain from forcing a particular ethnic identity on him when issuing
his new identity documents. Moreover, he believed that even if his
parents had freely declared themselves ethnic Moldovans, Russians,
Ukrainians or Gagauz, he should be able to enjoy the freedom to
choose to declare and have recorded an ethnic identity to which he
intimately considered himself to belong without being obliged to
assume an ethnicity chosen by his parents. He mentioned, in this
context, that his parents had been forced to declare themselves
ethnic Moldovans by the Soviets under the general Soviet policy
concerning the population of Bessarabia.
The
applicant strongly disagreed with the theory promoted by the Moldovan
authorities that there was a Moldovan ethnicity distinct from the
Romanian ethnicity. However, even assuming that the Romanians were an
ethnic minority in the Republic of Moldova, as alleged by the
Government, he should have been allowed to enjoy the right provided
for in section 2 of the Law on National Minorities (see paragraph 15
above) and to be able to chose freely whether he belonged to that
minority or not. Since the Moldovan authorities and courts neglected
that right, they breached the provisions of that section and
therefore the interference was not in accordance with the law within
the meaning of Article 8 § 2 of the Convention.
According
to the applicant, the interference in the present case did not pursue
a legitimate aim. In fact, the Government were pursuing the aim of
“Moldovenisation” of the population representing the
majority ethnic group but not any of the legitimate aims provided for
in the second paragraph of Article 8.
In
the applicant's opinion, the State's policy of imposing by force the
Moldovan ethnic identity on him and on others amounted to xenophobia
as it was not in accordance with any democratic values and did not
promote the value of pluralism,
inherent in a democratic society. The applicant denied the
Government's argument that he needed to be indicated as an ethnic
Romanian in the records in order to obtain Romanian citizenship. He
argued that according to the law of Romania, Romanian citizenship was
issued to former Romanian citizens and their descendants irrespective
of ethnic origin. The applicant contended that the State had placed
on him an excessive and insurmountable burden by requesting
documentary evidence of his Romanian origin in circumstances in which
it was common ground that almost all the representatives of the
majority ethnic group had been deliberately recorded as ethnic
Moldovans during the Soviet era. Moreover, the applicant had been
placed in a position of substantial disadvantage vis-à-vis
the Government, which did not have to produce any evidence of his
Moldovan ethnic identity.
2. The Government's arguments
The
Government submitted that Article 8 of the Convention was not
applicable in the present case because the right to respect for
private life did not cover the right to ethnic identity and that
there was no interference with the applicant's rights under that
provision.
Alternatively,
a simple declaration by the applicant that he and his parents were of
Romanian ethnic identity was not sufficient for the records to be
changed. There was a need for evidence but not for arguments based on
an alleged scientific and historical truth. The Government submitted
that the applicant was the only person who had ever instituted
proceedings with a view to changing his ethnic identity from Moldovan
to Romanian. They had to rely therefore on a similar case concerning
other ethnic identities, namely on the domestic judgment in the case
of Caragheorghi, where a person had been able to have his
ethnic identity changed from Gagauz to Greek on the basis of evidence
proving the Greek ethnic identity of one of his ancestors (see
paragraph 22 above). At the same time they drew attention to section
68 of the Law on Documents pertaining to Civil Status, which clearly
stated that it was impossible to rectify the ethnic identity of one's
parents in their children's birth certificates, on the basis of
identity papers of grandparents or other ascendants, if the parents'
civil status documents did not contain information concerning the
requested ethnic identity.
The
Government further submitted that in their requests of 1976 and 1979
for Soviet identity cards the applicants' parents had written in
their own hands that they were ethnic Moldovans. Accordingly, the
applicants' parents had never declared themselves to be ethnic
Romanians.
The
Government disputed the applicant's allegation to the effect that the
Soviet and Moldovan authorities had pursued a policy of
denationalisation on the territory of Moldova and submitted that
besides Moldovan ethnic origin, origins such as Romanian, Polish,
Ukrainian, Bulgarian, Jewish, Byelorussian, Tajik, Gypsy, German and
others were recorded in respect of a significant number of persons.
The Government submitted copies of such records.
According
to the Government, a blanket acceptance of requests concerning
changes in ethnic identity, based solely on the applicants'
declaration but not on evidence, could lead to serious consequences
of an administrative nature. The Government asked a rhetorical
question as to what might happen if a significant number of Moldovan
nationals declared themselves to be ethnic French, German or English
and were recorded as such solely on the basis of their declarations.
In the Government's view such a situation could constitute an abuse
in respect of other countries. The Government suggested that the
applicant's desire to be recorded as an ethnic Romanian might be
motivated by his intention to obtain Romanian citizenship and argued
that it was within the Government's margin of appreciation to
determine the extent to which requests concerning changes in records
concerning ethnic origin could be accepted. In any event, the
Convention was to be interpreted in the light of present
circumstances and not in the light of the history of a period during
which the Convention was not yet in existence.
Referring
to the Framework Convention for the Protection of National
Minorities, the Government submitted that a person's personal choice
of a particular ethnicity was an essential element but was not
sufficient for the purpose of enjoying special privileges.
B. The Court's assessment
The
Court reiterates that the concept of “private life” is a
broad term not susceptible to exhaustive definition. It covers the
physical and psychological integrity of a person (see Pretty v.
the United Kingdom, no. 2346/02, § 61, ECHR
2002 III, and Y.F. v. Turkey, no. 24209/94,
§ 33, ECHR 2003 IX). The notion of personal autonomy
is an important principle underlying the interpretation of the
guarantees provided for by Article 8. Under this principle protection
is given to the personal sphere of each individual, including the
right to establish details of their identity as individual human
beings (see Burghartz v. Switzerland, 22 February 1994, § 24,
Series A no. 280 B; Christine Goodwin v. the United Kingdom
[GC], no. 28957/95, § 90, ECHR 2002 VI). The Court has held
that gender identification, name and sexual orientation and sexual
life were details pertaining to an individual's identity falling
within the personal sphere protected by Article 8 (see, among other
authorities, Bensaid v. the United Kingdom, no. 44599/98,
§ 47, ECHR 2001 I with further references, and Peck
v. the United Kingdom, no. 44647/98, § 57,
ECHR 2003 I). In a more recent judgment, in the case of S.
and Marper v. the United Kingdom ([GC], nos.
30562/04 and 30566/04, § 66, 4 December 2008), the Court
further held that ethnic identity was also a detail pertaining to the
individual's identity falling within the ambit of Article 8.
Although
the object of Article 8 is essentially to protect the individual
against arbitrary interference by public authorities, it does not
merely compel the State to abstain from such interference. There may,
in addition to this primary negative undertaking, be positive
obligations inherent in an effective respect for private life. These
obligations may involve the adoption of measures designed to secure
respect for private life (see X and Y v. the Netherlands,
26 March 1985, § 23, Series A no. 91). The boundaries between
the State's positive and negative obligations under this provision do
not always lend themselves to precise definition; nonetheless, the
applicable principles are similar. In both contexts regard must be
had to the fair balance that has to be struck between the competing
interests of the individual and the community as a whole, and in both
contexts the State is recognised as enjoying a certain margin of
appreciation (see Paulík v. Slovakia, no.
10699/05, § 43, ECHR 2006 XI (extracts)).
The
Court reiterates that in the assessment of the present case it should
be borne in mind that the Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical
and effective
(see Airey v. Ireland, 9 October 1979, § 24,
Series A no. 32). Whilst Article 8 contains no explicit procedural
requirements, it is important for the effective enjoyment of the
rights guaranteed by this provision that the relevant decision making
process is fair and such as to afford due respect to the interests
safeguarded by it. Such a process may require the existence of an
effective procedural framework whereby an applicant can assert his or
her rights under Article 8 under conditions of fairness, including as
regards matters of proof and evidence. The Court recalls in this
latter connection that in the case of I. v. Finland (no.
20511/03, § 44, 17 July 2008) in finding a violation of
Article 8 of the Convention the Court gave weight to the fact that
the State had placed too heavy a burden of proof on the applicant in
civil proceedings in which she sought compensation for the
dissemination of information about her medical condition.
The
Court is aware of the highly sensitive nature of the issues involved
in the present case. It therefore stresses from the outset that, for
the purposes of the present judgment, it will distance itself from
the debate within Moldovan society concerning the ethnic identity of
the main ethnic group and will take as a working basis the
legislation of the Republic of Moldova and the official position of
the respondent State (see paragraphs 15 and 23 above) when referring
to Moldovans and Romanians.
As
noted above, along with such aspects as name, gender, religion and
sexual orientation, an individual's ethnic identity constitutes an
essential aspect of his or her private life and identity. This must
be particularly true in the current social setting of the Republic of
Moldova, where the problem of ethnic identity has been the subject
matter of social tension and heated debate for a long time and, more
importantly, where an individual's recorded ethnic identity, unlike
other recorded aspects of identity, is decisive for the determination
of the ethnic identity of his or her children and of the next
generations. Accordingly, the facts of the present case fall within
the ambit of “private life” under Article 8 of the
Convention and since the authorities refused to record the
applicant's declared ethnic identity, he may claim to be a victim of
a breach of the provisions of this Article. The Court therefore
dismisses the Government's preliminary objection (see paragraph 32
above).
The
applicant contended that the authorities' actions were not “in
accordance with the law”; however, the Court considers that the
provisions of section 68 of the Law on Documents pertaining to Civil
Status were couched in sufficiently clear terms in so far as their
accessibility and foreseeability are concerned.
While
the applicant contested the existence of a legitimate aim, the
Government did not expressly refer to any legitimate aim pursued in
this case. The Court, for its part, is ready to accept that the
impugned measure pursued the legitimate aims of safeguarding national
security and preventing disorder.
The
Government's main argument was that recording an individual's ethnic
identity, solely on the basis of his or her declaration and in the
absence of any objective grounds linking the individual to the
ethnicity claimed, could lead to serious administrative consequences
and to possible tensions with other countries.
The
Court does not dispute the right of a Government to require the
existence of objective evidence of a claimed ethnicity. In a similar
vein, the Court is ready to accept that it should be open to the
authorities to refuse a claim to be officially recorded as belonging
to a particular ethnicity where such a claim is based on purely
subjective and unsubstantiated grounds. In the instant case, however,
the applicant appears to have been confronted with a
legal requirement which made it impossible for him to adduce any
evidence in support of his claim. This is precisely because
section 68 of the Law on Documents pertaining to Civil Status and the
current practice of recording ethnic identity create insurmountable
barriers for someone wishing to have recorded an ethnic identity
different from that recorded in respect of his or her parents by the
Soviet authorities. According to this section the applicant could
change his ethnic identity only if he could show that one of his
parents had been recorded as being of Romanian ethnicity in the
official records, which represented a disproportionate burden in view
of the historical realities of the Republic of Moldova (see
paragraphs 18 and 19 above).
The
Court would further observe that Mr Ciubotaru's claim is based on
more than his subjective perception of his own ethnicity. It is clear
that he is able to provide objectively verifiable links with the
Romanian ethnic group such as language, name, empathy and others.
However, no such objective evidence can be relied on under the
Moldovan law in force.
Having regard to the circumstances of the case as a whole, it cannot
be said that the procedure in place to enable the applicant to have
his recorded ethnicity changed complied with Moldova's positive
obligations to safeguard his right to respect for his private life.
For the Court, the State's failure consists in the inability for the
applicant to have examined his claim to belong to a certain ethnic
group in the light of the objectively verifiable evidence adduced in
support of that claim. The Court therefore concludes that the
authorities failed to comply with their positive obligation to secure
to the applicant the effective respect for his private life. There
has, accordingly, been a breach of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant also alleged a violation of Article 6 of the Convention on
account of the fact that under Moldovan law it was impossible for him
to adduce evidence in support of his claim to have his ethnic origin
changed from Moldovan to Romanian. Since this complaint relates to
the same matters as those considered under Article 8, the Court does
not consider it necessary to examine it separately (see, mutatis
mutandis, Megadat.com S.R.L. v. Moldova, no.
21151/04, § 80, 8 April 2008).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 3,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government disagreed, arguing that this amount was unfounded and that
the claim should thus be dismissed.
Having
regard to the violation found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
the applicant EUR 1,500.
B. Costs and expenses
The
applicant claimed EUR 6,280 for legal costs and expenses incurred
during the proceedings before the Court by the representative who
submitted the observations on the case. He requested that the amount
be paid directly to that representative.
The
Government considered this claim unjustified and excessive.
In
the present case, regard being had to the itemised list submitted and
to the complexity of the case, the Court awards EUR 3,500 in
respect of the costs incurred by the applicant's representative, who
submitted the observations on the case, to be paid into a bank
account indicated by him (see Denizci and Others v. Cyprus,
nos. 25316-25321/94 and 27207/95, § 428, ECHR 2001 V,
and Cobzaru v. Romania, no. 48254/99, § 111, 26 July
2007).
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government's objection
based on lack of victim status and declares the application
admissible;
Holds that there has been a violation of Article
8 of the Convention and dismisses the Government's
above-mentioned objection;
Holds that there is no need to examine
separately the complaint under Article 6 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 3,500 (three thousand five
hundred euros) in respect of costs and expenses, to be converted into
Moldovan lei at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Mijović
is annexed to this judgment.
N.B.
F.A.
CONCURRING OPINION OF JUDGE MIJOVIĆ
Although
I have voted with the majority of the Chamber, my reasoning with
respect to the finding of a violation of Article 8 of the Convention
differs to a significant extent from the views expressed in the
judgment.
According
to the present judgment, Article 8 of the Convention has been
violated because there is no possibility, under the Moldovan law in
force, for the applicant to have examined his claim to belong to a
particular ethnic group in the light of objectively verifiable
evidence adduced in support of that claim (see paragraph 59 of the
judgment). While the majority concentrated on the requirements of
Moldovan law that made it impossible for the applicant to adduce any
evidence in support of his claim, in my personal opinion a violation
should have been based on the authorities' refusal to uphold the
applicant's request to change the records in such a way as to reflect
his own perception of his ethnic identity.
Turning
to the facts of this case, one cannot but notice that there is an
apparent inconsistency between, on the one hand, the practice of the
Moldovan authorities in the field of recording ethnic identity and,
on the other hand, both the domestic (the Constitution of Moldova and
the Law on the Rights of Persons belonging to National Minorities)
and international law (Article 3 of the Framework Convention for the
Protection of National Minorities of 1995) (see paragraphs 14, 15 and
24 of the judgment). While both domestic and international law
provide that any person has the right freely to choose whether or not
to belong to an ethnic minority, it seems to be the practice of the
Moldovan authorities to impose a particular ethnicity (Moldovan) on
an individual, a practice which I find per se contrary to the
principle of self-identification which was not only accepted but
further developed in the Grand Chamber's Sejdić
and Finci v. Bosnia and Herzegovina judgment
(Sejdić and Finci v. Bosnia and
Herzegovina [GC], nos. 27996/06 and
34836/06, 22 December 2009). In that judgment, the Grand
Chamber established that the applicants, who described themselves as
being of Roma and Jewish origin and who did not wish to declare
affiliation with the constituent peoples (Bosniacs, Croats and
Serbs), were discriminated against (see paragraph 45 of the
judgment,). The issue of ethnicity as discussed in that particular
judgment was explained as having its origin in the idea of societal
groups characterised in particular by a common nationality, religious
faith, shared language or cultural and traditional origins and
backgrounds (see paragraph 43 of the judgment). The particular
importance of that case for the present one is to be found in the
conclusion to be drawn from the Grand Chamber's reasoning, namely
that one's choice to declare affiliation with an ethnic group (or
not) needs to be respected. In Moldova, just as in Bosnia and
Herzegovina, ethnic affiliation is not to be regarded as a legal and
objective concept, but a political and subjective one. It has not
been shown in the present case that there were any objective
parameters for establishing affiliation with a particular ethnic
group, nor any legal consequences for an individual who establishes
such affiliation. Thus, I consider self-identification primarily as a
matter of personal perception rather than a matter based on objective
grounds, and that is why I do not share the Chamber's reasoning in
the judgment.
