MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-24

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-24 X. v. North Macedonia[1] (Application No. 29683/16) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2021)968, CM/Del/Dec(2020)1369/H46-18

 

Application	Case	Judgment of	Final on	Indicator for the classification
29683/16	X.	17/01/2019	17/04/2019	Complex problem

Case description

The case concerns a violation of the transgender applicant’s right to respect for his private life on account of the absence of quick, transparent and accessible procedures in national legislation that would allow the change of the sex/gender marker on his birth certificate (violation of Article 8).

The European Court highlighted that the national regulatory framework on the legal recognition of gender left a number of important questions unanswered, such as the existence and nature of any requirement that a claimant needs to fulfil in order to have the sex/gender marker in the official records changed (§ 69). As a result, the applicant has been left in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity since 2011, when he lodged an application for changing the sex/gender marker on his birth certificate with the Civil Status Registry.

Status of execution

In their action plan dated 29 September 2021 (DH-DD(2021)968), the authorities provided the following information:

Individual measures:

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage, which was paid within the deadline set by the European Court.

On 10 February 2020 the State Commission (second-instance administrative authority) adopted a decision upholding the applicant’s application for changing his sex/gender marker. The Civil Status Registry subsequently changed the applicant’s sex/gender marker in the official records and the Ministry of Internal Affairs issued a new numerical personal code corresponding to his changed sex/gender. On 26 October 2020, a new birth certificate with the new sex/gender marker was issued to the applicant.

General measures:

Prior to the present judgment, in November 2018, the Government set up a task force to prepare draft amendments to the Civil Status Registration Act to regulate the legal recognition of gender. The task force included representatives of competent state bodies and representatives of civil society, including the applicant’s representative.

In response to the present judgment, on 2 October 2019 the then Minister of Justice received a Council of Europe’s delegation, notably representatives of the Department for the Execution of judgments of the European Court Following this meeting, the authorities agreed on a roadmap for the execution of this judgment. It included, inter alia, the following steps:

-       a study visit of a delegation from the respondent State to Malta to obtain detailed insight into best practices concerning the legal recognition of gender, taking place in February 2020;

-       an overview of the existing laws on the recognition of gender and good practices in other member States, to be provided to the authorities by the Council of Europe;

-       a Convention-compatibility check of the draft legislation once prepared, to be carried out by the Council of Europe.

The above-mentioned study visit to Malta took place on 12-14 February 2020, allowing the delegation from North Macedonia to study the Maltese legal gender recognition model. During the study visit, the authorities were briefed by the Maltese authorities on how they overcame the challenges in adopting Convention-compliant gender recognition legislation. In addition, as a part of the above roadmap, in March/April 2020 a comparative analysis of the legal recognition of gender in other member States was prepared by the Council of Europe and disseminated to the task force.

As a result of the above activities, the task force finalised the draft amendments to the Civil Status Registration Act. They were positively assessed by the Secretariat in December 2020. Following their approval by the Government, on 6 May 2021 they were transmitted to Parliament for adoption.

Pursuant to these draft amendments, every citizen who reached 18 years of age, who is legally capable and who is not married has the right to legal recognition of gender. The request for recognition of gender is submitted in person or through a representative to the Civil Status Registry. The request shall be accompanied by: (i) a copy of the submitter’s identity card, (ii) statement in the form of a notary deed that the gender identity does not correspond to the sex given at birth and that the change is not requested for the purpose of avoiding a contractual or legal obligation or execution of a sentence under full material and criminal responsibility and (iii) power of attorney if the request is submitted through a representative. The procedure for legal recognition of gender shall not require the submission of evidence of a surgical procedure for complete or partial redistribution of genitalia, hormone therapy or any other psychiatric, psychological or medical treatment of the applicant.  

If the request is not complete, the Civil Status Registry shall invite the submitter of the request to complete the request within 15 days from the receipt of the notification. If the submitter of the request fails to do so, the Civil Status Registry shall reject the request. The submitter of the request has the right to appeal this decision to the State Commission as a second instance authority.

The Civil Status Registry shall accept or reject the request for legal recognition of gender, within 30 days from the day of receipt of the completed request. In case of a rejection, the submitter can appeal to the State Commission within 15 days. Based on a final decision that legally recognises the gender, the Civil Status Registry changes the gender data in the birth certificate within 10 days following the finality of the decision. In addition, Civil Status Registry requests from Ministry of Interior to annul of the numerical personal code indicating the person’s former gender. The birth certificate shall be issued without notice of gender change.

The authorities indicated that the adoption of the draft amendments is currently in first reading in Parliament. The authorities however noted that pursuant to the statements made by the Speaker, Parliament would not hold sessions in view of the campaign for the local elections in October 2021. 

Analysis by the Secretariat

Individual measures:

The applicant received the just satisfaction for non-pecuniary damages awarded by the European Court. The applicant’s claim to be granted a new male sex/gender marker was accepted and his sex/gender change was fully recognised in his civil-status data. In light of this information, no further individual measures are necessary, and the Committee of Ministers may close the supervision of individual measures.

General measures:

It might be noted with satisfaction that in response to the European Court’s findings in this case the authorities prepared the draft amendments to the Civil Status Registration Act with a view to regulating the conditions and procedures for the legal recognition of gender.

It is particularly positive that during the drafting process the authorities continued their constructive engagement with civil society and close co-operation with the Secretariat.

As a result, once adopted, the above amendments are expected to set up a clear legal framework regulating the conditions and introducing quick, transparent and accessible procedures for the legal recognition of gender based on the principle of self-determination.

At the time of the drafting of the present notes, the proposed legislative amendments were pending in Parliament. It is noted that on 30 September 2021, during his address to Parliamentary Assembly of the Council of Europe, the Deputy Prime Minister for European Affairs of North Macedonia confirmed that Parliament was not fully functional due to the campaign for local elections and that the plan is to adopt the proposed draft amendments in November 2021.

Should the legislation not be adopted by the 1419^th meeting (DH), the authorities might be strongly encouraged to take all necessary measures to ensure that it is adopted without delay. The Committee of Ministers should be informed of all relevant developments in this regard and might therefore wish to invite the authorities to submit an updated action plan by 1 March 2022 at the latest.

Financing assured: YES