PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1 . I respectfully disagree with the views of the majority that the application is admissible and that Article 8 has been violated. In my opinion, the decision to refuse to change the applicant ’ s entry on the electoral roll pertaining to his ethnic identity did not amount to an interference with the right protected by Article 8 of the Convention. My disagreement with the majority pertains in particular to ( i ) the interpretation of the Framework Convention for the Protection of National Minorities, which forms the context in which the European Convention on Human Rights is applied; (ii) the methodology for the application, as well as the meaning, of Article 8 of the European Convention on Human Rights; and (iii) the methodology for the interpretation of national law and its content.

2 . Concerning the facts of the case, I note that the applicant identified himself as Bulgarian in the previous elections to the State Judicial Council (in 2006, 2008 and 2010 – see paragraph 15 of the judgment). In 2012 he decided to identify himself as Macedonian in these elections. The applicant justified this new identity solely by his right to free self-identification (see paragraph 10). According to the national authorities, the applicant was seeking an unfair advantage in the elections (see paragraph 12 and 15). To put it in other words, his request was dismissed as abusive by the national authorities.

3 . In the instant case the majority rightly refer to the Framework Convention for the Protection of National Minorities. I note that North Macedonia has ratified this treaty and that it entered into force in respect of that State on 1 February 1998. By a letter of the Minister of Foreign Affairs, dated 16 April 2004, registered at the Secretariat General of the Council of Europe on 2 June 2004, North Macedonia made the following declaration in connection with this treaty, replacing its previous declarations:

“The term ‘ national minorities ’ used in the Framework Convention and the provisions of the same Convention shall be applied to the citizens of the Republic of Macedonia who live within its borders and who are part of the Albanian people, Turkish people, Vlach people, Serbian people, Roma people and Bosniac people.”

4 . The Framework Convention for the Protection of National Minorities contains a provision which has the following wording:

Article 3

“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 and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.

2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.”

The Explanatory Report to the Framework Convention for the Protection of National Minorities contains the following explanations in this respect:

“12. It should also be pointed out that the framework Convention contains no definition of the notion of ‘ national minority ’ . It was decided to adopt a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe member States.

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Article 3

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Paragraph 1

34. Paragraph 1 firstly guarantees to every person belonging to a national minority the freedom to choose to be treated or not to be treated as such. This provision leaves it to every such person to decide whether or not he or she wishes to come under the protection flowing from the principles of the framework Convention.

35. This paragraph does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual ’ s subjective choice is inseparably linked to objective criteria relevant to the person ’ s identity [emphasis added].

36. Paragraph 1 further provides that no disadvantage shall arise from the free choice it guarantees, or from the exercise of the rights which are connected to that choice. This part of the provision aims to secure that the enjoyment of the freedom to choose shall also not be impaired indirectly.”

In other words, according to the Explanatory Report, the Framework Convention does not guarantee the right to choose arbitrarily one ’ s own ethnic identity. It only guarantees the right of persons belonging to national minorities to opt out freely from the special protection of the Framework Convention and to choose the general regime. A person belonging to a national minority has the right to opt out of the Framework Convention protection in certain chosen spheres of life or in all fields. At the same time, affiliation with a national minority or the national majority for the purpose of the exercise of certain rights is not identical to ethnic identity. Ethnic identity as such, under the Framework Convention, reflects objective criteria accepted in the society in question. It is not a subjective feeling and cannot be chosen arbitrarily.

The reasoning of the majority may suggest that for the purpose of recognition of ethnic identity by the State authorities, the subjective feelings of the person concerned are always decisive. In my view, such an interpretation of the Framework Convention would not be correct. It would depart both from the text of the treaty and from the intent of the Contracting Parties as expressed in the above-mentioned Explanatory Report.

5 . I have previously expressed my doubts as to whether the right enshrined in Article 8 of the Convention may extend to ethnic identity (see my separate opinion appended to the judgment in the case of R.B. v. Hungary , no 64602/12, 12 April 2016). This issue, however, is not decisive in the present case, because in any event it is difficult to conclude that Article 8, as understood in the Court ’ s case-law, is applicable to the applicant ’ s grievances.

The Court addressed issues concerning the protection of ethnic identity under Article 8 of the Convention in the judgment in the case of Ciubotaru v. Moldova (no. 27138/04, 27 April 2010), in which it expressed the following views (§ 57):

“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.”

I fully agree with this view.

This approach is further confirmed and explained in paragraph 59 of the same judgment in the following terms:

“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 .” [ emphasis added]

Under this approach, ethnic identity consists in belonging to an ethnic community. Although membership of the community depends also on personal choice, it cannot be reduced to such a choice. Membership of an ethnic community is a social reality involving different types of interactions with its other members. In other words, Article 8 does not protect the freedom to determine arbitrarily one ’ s own ethnic identity by way of a simple declaration not substantiated by any objective evidence. Therefore, the refusal to recognise a change of ethnic identity if the request is not substantiated by any evidence pointing to objective criteria cannot be seen as an interference with a right protected by Article 8.

6 . In paragraph 32 of the instant judgment the majority express the following view:

“The Court has previously held that ethnic identity is a detail pertaining to an individual ’ s identity that falls within the personal sphere protected by Article 8 of the Convention (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 58, ECHR 2012, and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008).” [ emphasis added]

This wording is not very fortunate. The word “detail” in English may mean either ( i ) “an individual feature, fact or item” or (ii) “a minor or less significant item or feature” (see The New Oxford Dictionary of English , J. Pearsall (ed.), Oxford University Press, Oxford, 1998, p. 502, entry “ detail ”). In my view, for most people ethnic identity is neither of the above. Ethnic identity is an essential part of personal identity, one of its most important aspects. As explained by the Court in the reasoning of the judgment in the case of Ciubotaru (cited above, § 53), “an individual ’ s ethnic identity constitutes an essential aspect of his or her private life and identity”.

I also note that in the two judgments quoted in paragraph 32 of the instant judgment, ethnic identity is referred to as an “element” and not as a detail. The phrase “a detail pertaining to an individual ’ s identity” is taken from the Ciubotaru judgment (cited above, § 49). However, the label “detail” is contradicted in the same judgment by emphasising the essential nature of ethnic identity ( ibid., § 53).

7 . The applicant in the present case complained that his new ethnic identity was not recognised in the context of elections to the State Judicial Council. The case raises the question whether the applicant was able to secure recognition of his new ethnic identity in other spheres of life and whether he could seek from the authorities a more general recognition of his new ethnic identity which could make it easier for him to have his identity recognised in more specific spheres of life.

The question of respect for a person ’ s ethnic identity requires a broader assessment of the person ’ s legal situation in this respect vis-à-vis the national authorities in different spheres of life. In particular, it seems indispensable to get a comprehensive view of the national legislation pertaining to the recognition of ethnic identity in these different spheres. It is also necessary to consider how this legislation has been applied to the applicant.

The majority decided to adopt an area-specific approach: they looked at ethnic identity in the context of elections of the State Judicial Council while ignoring the question of recognition of ethnic identity in other contexts. In my view, such a methodology of applying Article 8 to questions of ethnic identity is problematic, even if the authorities have to observe the right of every person belonging to a national minority to opt out of minority protection in some areas while not in others.

8 . When assessing whether the domestic authorities complied with Article 8 of the Convention, the majority focus on the question of the foreseeability of the impugned interference and analyse the meaning of section 17 of the State Judicial Council Act. They conclude that “although it was accessible, the legal basis on which the impugned refusal rested was not foreseeable” (see paragraph 40 in fine of the judgment).

I note that under section 17 of the State Judicial Council Act, within five days of elections for members of the SJC being announced, the electoral roll is made available for inspection in all courts, and every judge is entitled to seek rectification of the details (in respect of themselves) thereon for a further three days. The law guarantees the right to have entries rectified, which presupposes that the relevant information should reflect an objective reality. The applicant could not legitimately expect his ethnic identity to be modified without sufficient substantiation of his request. In my view, the national legislation is sufficiently clear and precise in this respect.

It is true that the decisions of the domestic authorities were not reasoned in a satisfactory way. But at the same time, it appears that there were no grounds to expect that the authorities would accept the applicant ’ s request.

9 . The assessment of the clarity of the national legislation and the foreseeability of the authorities ’ decision has another serious flaw. The majority interpret section 17 in complete isolation from any other legal rule or provision. The impugned provision is interpreted without any consideration for its systemic context. This context consists of relevant legal rules which might have been inserted in other statutes or regulations and more general principles which may be applicable and which might have implicitly guided the national authorities, even if they did not consider it necessary to refer expressly to them in the reasoning of the decisions they rendered. It is also necessary to take into account all the relevant rules concerning the recognition of ethnic identity in other spheres of life.

It does not seem reasonable to assess whether a request was duly rejected by an administrative authority as abusive without looking at more general legal rules in domestic law concerning abusive applications and without taking into account the relevant case-law of the domestic courts concerning the abuse of rights in administrative proceedings. The approach of the majority violates the established canons of legal interpretation.

10 . As mentioned above, the majority rightly emphasise the right to opt out of the special regime protecting ethnic minorities. I note that this right to opt out was fully observed. The applicant himself explained that he was free to opt out from running on a national minority list and to run on a general list of candidates (see paragraph 30 of the judgment). There was nothing preventing him from benefiting from the general regime applicable to all citizens of North Macedonia.

I also note in this context that the right to opt out of the special regime for minorities is limited to the regime under the Framework Convention. Elections to national councils of the judiciary are not covered by this treaty.

11. In paragraph 39 in fine of the judgment the majority state the following: “It has not been argued, either during the impugned proceedings or before the Court, that there was open to the applicant any other legal avenue in respect of his request.” This is simply not true. According to the Government, the applicant could have submitted a renewed request after the elections. The applicant has not denied this assertion. The resulting delay, given the context of the case, would not appear unreasonable. At the same time, the applicant did not claim that he would have suffered any significant disadvantage because of such a delay.

In these circumstances, the refusal of the domestic authorities to accept the applicant ’ s request does not reach the threshold of an interference with a right protected under Article 8 of the Convention, as understood in the Court ’ s case-law.