Communicated on 22 September 2017

FIRST SECTION

Application no. 43440/15 Dženifer DŽELADIN against the former Yugoslav Republic of Macedonia and 2 other applications (see list appended)

The applicants are Macedonian nationals of Roma origin. For more details see the appendix.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no 43440/15, date of introduction: 25 August 2015 ( Dženifer D ž eladin v. the former Yugoslav Republic of Macedonia)

On 12 June 2013 the applicant was travelling by bus, together with her parents and grandfather, to Italy to attend her cousin ’ s wedding. On the Tabanovce border crossing with Serbia, they were not allowed to leave the respondent State because they could not present a letter of invitation from an Italian resident. A certificate from the Italian authorities (translated into Macedonian) that the wedding had been scheduled for 15 June 2013 and the fact that the applicant and her parents were in employment were not sufficient for the border police officer to allow them to exit the State. The next day, the applicant was allowed to leave the State.

After the applicant had returned from Italy, on 24 July 2013 she lodged a constitutional appeal with the Constitutional Court, alleging that the authorities had violated her right to leave the State and had discriminated against her on the grounds of her Roma origin. In this latter respect she submitted that all other passengers on the bus who had not been Roma and had not had darker skin had been allowed to leave the State.

By a decision of 18 February 2015 (d ispatched to the applicant on 3 March 2015) the Constitutional Court rejected ( отфрла ), by a majority vote, the applicant ’ s appeal, holding that she had failed to present relevant facts and evidence in support of her allegations. In the absence of a letter of invitation and proof of sufficient means of subsistence for the duration of her stay outside the respondent State (which the Interior Ministry noted in its reply to the applicant ’ s appeal), the court held that the prohibition on the applicant leaving the State had been in accordance with the law – notably section 5 of the Schengen Borders Code (EC) 562/2006 (see the “Relevant material” part below).

In civil proceedings that the applicant ’ s father brought under Anti-Discrimination Act, as the lex specialis , on the same grounds and regarding the same incident, the domestic courts, at two levels of jurisdiction (in decisions adopted on 11 April 2014 and 23 September 2015), held that the Interior Ministry had discriminated against him on the grounds of his Roma origin. After hearing evidence from the police officer directly involved in the incident, the courts established that he had neither asked the plaintiff to submit the certificate from the Italian authorities (attesting to the wedding) nor to show that he had sufficient financial means. On the contrary, after consulting his superior, it had been decided that the plaintiff should not be allowed to leave the State in the light of the instruction that border police officers should “pay particular attention to Roma” as they had been among those who had most frequently sought asylum. The plaintiff was awarded the equivalent of approximately 500 euros (EUR) in compensation.

2. Application no 44027/16, date of int roduction: 18 July 2016 ( Muamet Abedinov v. the former Yugoslav Republic of Macedonia)

The applicant had no previous record of violating the rules on entry and exit from the respondent State. On 29 April 2015 the border control police at Skopje airport did not allow the applicant, who was travelling with his aunt, a German national, to leave the State, notwithstanding the fact that he had a return flight ticket and a valid biometric passport. This was because he could not produce a letter of invitation and proof of sufficient means of subsistence for the duration of his stay in Germany – which according to the applicant, had not been sought from other non-Roma passengers. On that occasion the police officer involved allegedly told the applicant that Roma were not allowed leaving the State and that his intention was surely to seek asylum “like the others”.

The applicant lodged a civil action for damages on the basis of the Anti-Discrimination Act , claiming that the ban on leaving the State had violated his right to freedom of movement and discriminated against him on the basis of his ethnic origin. In this connection he relied on the relevant material cited below (see the “Relevant material and practice” part).

By judgments of 16 November and 24 December 2015 (the latter received by the applicant on 22 January 2016), courts at two instances dismissed the applicant ’ s claim, finding that the impugned measure had been in accordance with the Schengen Borders Code (see below) and that the applicant had not identified any person in an equivalent position who had been allowed to leave the State.

3. Application no 16460/17, date of introduction: 23 February 2017 ( Sejat Zekirov v. the former Yugoslav Republic of Macedonia)

On 22 October 2014 the applicant, an employee in a public enterprise, was travelling (together with his son, daughter-in-law and grandchild) to Serbia to visit his deceased brother ’ s family. They all had a return bus ticket. At the Tabanovce border crossing the applicant was asked to leave the bus. When the applicant said that he had just over EUR 100 in his possession, a border police officer allegedly told him that, being of Roma origin, his intention was surely to seek asylum in an EU State; accordingly, he prevented him (and his companions) from leaving the State.

The applicant ’ s civil action for damages based on the Anti-Discrimination Act against the Ministry of the Interior (in respect of the alleged violation of his right to freedom of movement, which he submitted had been due to discrimination on ethnic grounds) was dismissed at two levels of jurisdiction (case number P1.12/2 015, last decision dated 11 May 2016, received by the applicant on 29 August 2016). The domestic courts found that the applicant ’ s failure to present a letter of invitation and proof of sufficient means of subsistence for the duration of his stay in Serbia had constituted valid grounds, as set out in Article 5 of the Schengen Borders Code, for the border police officer to ban the applicant from leaving the respondent State.

B. Domestic material and practice

1. Reports of 2013 and 2014 of the Macedonian Ombudsman

The relevant parts of the 2013 Report of the Macedonian Ombudsman read as follows:

“(There are an) increasing number of complaints of discrimination based on ethnicity being lodged by members of the Roma community, due to their being turned back from border crossings of the Republic of Macedonia.”

The relevant parts of the 2014 Report of the Macedonian Ombudsman read as follows:

“There is unequal treatment of citizens belonging to different ethnic communities in society, which signals the existence of discrimination on ethnic grounds.

Roma and Albanians are not usually allowed to depart from the Republic of Macedonia and they are turned back from the border, which limits their right to free movement.

The required level of tolerance has not yet been established [and] there [exist] prejudice and barriers in society in terms of the overall functioning of the principle of non-discrimination.

The current regulations in respect of border controls do not provide legal security and the possibility of legal protection for citizens when border officers in their oral decisions do not permit [their] crossing the border.”

2. Relevant domestic practice

The applicants submitted several final judgments in which the domestic courts ruled in favour of plaintiffs (also of Roma origin) who had been prevented from exiting the State under similar circumstances as those which the applicants had faced. The courts had found that the burden of proof had been on the Interior Ministry, which had failed to prove that the plaintiffs had not been discriminated against on the basis of their ethnic origin (Case numbers G ž .no.183/2015; Gž.no. 518/2015; Gž.no. 711/2016; Gž.no. 2086/2016 and Gž.no. 587/2017).

C. International material

1. European Commission against Racism and Intolerance ( ECRI) Report on “the former Yugoslav Republic of Macedonia”, adopted on 18 March 2016, CRI(2016)21

The relevant parts of the Report read as follows:

2. Racial profiling by the border police

“83. ECRI received information from several human rights organisations that the country ’ s border police uses racial profiling against members of the Roma community during controls of persons departing from the country at land border crossings and airports. The MHC [1] carried out a situation testing, which showed that only Roma were subjected to in-depth questing and inspection of their relevant documents when a coach tried to exit the country. The authorities confirmed that this method is being employed by the border police with a view of ensuring the strict adherence to the European Union ’ s travel and immigration rules, which the country agreed to enforce as part of the visa- liberalisation agreement it concluded with the European Union. The authorities insist that all Roma who possess the necessary documents and proof of financial means, are allowed to travel. During a meeting with the ECRI delegation, it became evident that, in spite of trainings received, the border police did not seem to be aware of the discriminatory impact of racial profiling and did not have any intention of stopping its use.

84. ECRI recommends that the authorities ensure that the country ’ s border police force receives adequate training to be able to carry out its duties under the visa- liberalisation regime with the European Union without applying racial profiling.”

2. Report by Nils Muižnieks , Council of Europe Commissioner for Human Rights, following his visit to “the former Yugoslav Republic of Macedonia” from 26 to 29 November 2012 ( CommDH (2013)4)

The relevant parts of the Report read as follows:

3. Exit control measures and their impact on the human rights of Roma

“99. There are indications that passports are regularly confiscated from those persons who are forcibly returned to “the former Yugoslav Republic of Macedonia”, and that Roma make up the majority of persons who have been prevented from leaving the country and had their travel documents confiscated.

...

101. The Commissioner is fully cognisant of the necessity for the authorities to implement binding rules and policies in the context of the country ’ s EU accession process. Moreover, states have a legitimate authority to control their borders and regulate migratory movements. However, it is of serious concern to him that these measures are being applied through profiling at borders. Even though the authorities have argued that these controls are not aimed at any particular ethnic group, there are clear indications that Roma are disproportionately affected by the exit control measures in question. At the same time, it is clear that the Macedonian authorities have developed a profile of a potential “unfounded” or “false” asylum seeker on the basis of information they receive from EU countries (cf. paragraph 96 above) ...”

Conclusions and recommendations:

106. The Commissioner considers that the measures adopted by the authorities of “the former Yugoslav Republic of Macedonia” in response to EU demands for management of migratory outflows interfere with the freedom to leave a country, including one ’ s own, guaranteed under Article 2 of Protocol No. 4 to the ECHR, as well as the right to seek and enjoy in other countries asylum from persecution, enshrined in Article 14 of the Universal Declaration of Human Rights. Roma are clearly disproportionately affected by the exit control measures and the confiscation of travel documents, which effectively amount to travel bans.”

D. European Union Law

1. Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

Article 5 (1) of the Schengen Border Code, in so far as relevant, reads as follows:

Article 5 Entry conditions for third-country nationals

“1. For stays not exceeding three months per six-month period, the entry conditions for third-country nationals shall be the following:

(a) they are in possession of a valid travel document or documents authorising them to cross the border;

...

(c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully ...”

E. Other material

The applicants submitted other relevant material, including reports by the European Roma Rights Centre, FRONTEX (EU External Border Agency) and the European Asylum Support Office.

COMPLAI NTS

The applicants complain that incidents in which border police officers prohibited them from exiting the respondent State violated their right to freedom of movement under Article 2 of Protocol No. 4 and amounted to discrimination on the basis of their Roma orig in, in contravention of Article 14 (taken in conjunction with Article 1 of Protocol No. 4) and Article 1 of Protocol No.12 of the Convention.

COMMON QUESTIONS

1. Was the ban placed on the applicants to leave the territory of the respondent State in compliance with Article 2 § 2 of Protocol No. 4 to the Convention?

2. Have the applicants been discriminated in the enjoyment of their right to freedom of movement on the grounds of their Roma origin, contrary to Article 1 of Protocol No. 12?

CASE SPECIFIC QUESTION

Have the applicants in applications nos. 44027/16 and 16460/17 suffered discrimination in the enjoyment of their Convention right on the grounds of their Roma origin, contrary to Article 14 of the Convention, read in conjunction with Article 2 § 2 of Protocol No. 4?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

43440/15

25/08/2015

Dženifer DŽELADIN

04/01/1987

Skopje

Žarko HADŽI-ZAFIROV

44027/16

18/07/2016

Muamet ABEDINOV

01/04/1986

Ko č ani

16460/17

23/02/2017

Sejat ZEKIROV

08/04/1967

Veles

Blagoja PANDOVSKI

[1] “ Helsinki Committee for Human Righ ts of the Republic of Macedonia”.