Ciubotaru v Moldova  ECHR 638 (27 April 2010)
In Ciubotaru v Moldova, the European Court of Human Rights held that, 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.
Considering art 8 of the European Convention on Human Rights, the Court held that the refusal by the State authority to record a change in ethnic identity, in circumstances where Mr Ciubotaru was able to provide objectively verifiable links to the relevant ethnic group, constituted a contravention of Moldova’s obligations to safeguard Mr Ciubotaru’s right to respect for his private life.
Mihai Ciubotaru is a Moldovan national who was born in 1952.
In 2002, Mr Ciubotaru applied to have his old Soviet identity card replaced with a Moldovan one. In making that application, Mr Ciubotaru initially stated his ethnicity as Romanian. However, he was advised by the relevant State authority that his application would not be accepted unless he stated his ethnicity as Moldovan. Mr Ciubotaru complied with this advice, amending the ethnic identity stated in the application from ‘Romanian’ to ‘Moldovan’.
Once Mr Ciubotaru received his new Moldovan identity card, he subsequently requested the issuing authority to amend the ethnic identity specified on the card from ‘Moldovan’ to ‘Romanian’ as he did not consider himself an ethnic Moldovan (an ethnic group which he believed to be an artificial creation of the Stalinist regime). His request was refused on the grounds that the State authority’s procedures would not permit such a change unless Mr Ciubotaru’s parents were recorded as ethnic Romanian in their birth and marriage certificates.
Mr Ciubotaru’s parents, Dumitru Ciubotaru and Sofia Caraiman, were born in 1927 and 1928 respectively in Balti, a 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 Sofia Caraiman’s birth certificate issued by the Soviet authorities in 1965 the ethnicity was also left blank. Later, Mr Ciubotaru’s parents were recorded as ethnic Moldovans on their Soviet identity cards issued in 1976 and 1979.
Having complained unsuccessfully numerous times to the Prime Minister, the President and various officials, Mr Ciubotaru initiated proceedings in the Rascani District Court against the relevant State administrative authority, however his claim was dismissed by both the District Court and the Chisinau Court of Appeal on the same basis as the State authority had rejected Mr Ciubotaru’s request; namely, that because his parents had not been recorded as ethnic Romanians, it was procedurally impossible for the State authority to record Mr Ciubotaru as an ethnic Romanian in his identity papers.
The Supreme Court of Justice subsequently dismissed Mr Ciubotaru’s appeal on points of law.
Mr Ciubotaru lodged an application with the European Court of Human Rights in 2004, alleging a breach by the Republic of Moldova of his right to respect for private life under art 8, and of his right to a fair hearing of his claim under art 6, of the European Convention on Human Rights.
Before the European Court of Human Rights, Mr Ciubotaru (‘the applicant’) argued that the relevant Moldovan law and practice of recording ethnic identity had created insurmountable barriers for people who wished to have a different ethnic identity registered in respect of themselves as compared to the ethnic identities recorded in respect of their parents by past Soviet authorities. He alleged that in refusing to register his Romanian ethnic identity, the authorities had humiliated him by forcing upon him an ethnic identity which was contrary to his philosophy and with which he did not identify. The applicant argued that the State’s actions were tantamount to xenophobia, as they were not in accordance with democratic values and did not promote the value of pluralism, inherent in a democratic society.
The applicant asserted that the forced imposition of Moldovan ethnic identity on him constituted an interference with his right to identity and consequently with his right to respect for his private life. The applicant also submitted that the authorities had a positive obligation to allow him to freely choose his association with any cultural group, including Romanian, without being required to provide evidence. Only one judge accepted the latter submission. The majority of the Court did not dispute the right of a State party to require objective evidence of a claimed ethnicity to be provided in support of an application to amend ethnicity in identity documentation.
The majority of the Court accepted the principle that it should be open to State authorities to reject a request to officially record a claimed ethnicity in circumstances where that claim is based on purely subjective and unsubstantiated grounds. However, in this case, the applicant appeared to have been confronted with a legal and procedural requirement which made it impossible for him to evidence his claim.
According to Moldovan law, the applicant could only have changed his ethnic identity if he was able to show that at least one of his parents had been recorded in official records as being of Romanian ethnicity. During Soviet times, almost all of the population of Moldova including members of the Romanian ethnic group had been deliberately and systematically registered as being of Moldovan ethnicity, with very few exceptions. The Court found that to require the applicant to show evidence of officially recorded Romanian parental ethnicity was to impose a disproportionate evidentiary burden.
The Court also observed that the applicant’s claim was based on more than just his subjective perception of his own ethnicity. In this case, the applicant was able to provide objectively verifiable links to the Romanian ethnic group including language, name and empathy, however Moldovan law did not recognize these characteristics as acceptable evidence of ethnicity. For this reason, procedures did not allow for the applicant’s claim to be examined by the State authority in light of the objectively verifiable evidence available in support of that claim.
The Court concluded that the existing procedure by which the applicant could have his recorded ethnicity changed did not comply with Moldova’s obligations under the Convention to safeguard his right to respect for his private life. The Court therefore declared that there had been a violation of art 8 of the Convention by Moldova. Given its finding in respect of art 8, the Court did not regard separate examination of the complaint under art 6 as necessary.
Relevance to the Victorian Charter
The requirement for public authorities in Victoria to act consistently with the right to respect for a person’s private life is contained in art 13 of the Victorian Charter. However, the exact meaning and scope of that right has never been easy to pinpoint.
The Court in Ciubotaru acknowledged that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. The Court has previously held that it covers various aspects of the physical and psychological integrity of a person and that gender identification, name, religion, sexual orientation and sexual life all pertain to an individual’s identity falling within the personal sphere protected by art 8, but it is important to remember that the Convention is a ‘living instrument’ – that is, the nature of Convention rights and the extent to which they should be protected will, to a large extent, rest upon society’s values at the time.
The decision in Ciubotaru should inform the Victorian courts’ interpretation of s 13 of the Charter, highlighting the fact that the list of characteristics constituting an individual’s ‘private life’ is far from closed. Similarly, the Victorian courts must continuously reassess the scope of rights protected under the Charter in light of material changes in attitudes towards, and scientific knowledge and insight into, human characteristics and interactions.
The decision is available at www.bailii.org/eu/cases/ECHR/2010/638.html.
Andrea Wookey is an Executive Counsel with Freehills, currently seconded to PILCH