PARTIALLY DISSENTING OPINION OF JUDGE EICKE

1 . While I agree with the majority both (a) in rejecting the Respondent Government ’ s preliminary objection ratione materiae , as well as (b) in their finding that the decision of the Ministry of Interior of 3 February 2014 as well as the decisions of the Administrative Court (3 July 2014) and the Higher Administrative Court (1 July 2015) failed to comply with the requirements of Article 1 § 1 (a) and (b) of Protocol No. 7 to the Convention, I voted against paragraph 2 of the Operative Part of the Judgment in which the Court concluded that “ ... there has been a violation of paragraph 1 (a) and (b) of Article 1 of Protocol No. 7 to the Convention” (my emphasis).

2 . By reason of a number of the factual circumstances particular to this case, my conclusion would rather have been that there “would have been a violation of Article 1 of Protocol No 7 to the Convention if the applicant had been expelled on the basis of the decision of 3 February 2014” (see mutatis mutandis paragraphs 1 and 3 of the operative part of Paposhvili v. Belgium [GC], no. 41738/10, ECHR 2016 ‑ I) or even that there “would be a violation of Article 1 of Protocol No 7 to the Convention if the applicant were expelled on the basis of the decision of 3 February 2014” (see mutatis mutandis paragraph 3 of the operative part of Sultani v. France , no. 45223/05, ECHR 2007 ‑ IV (extracts)”.

3 . Let me briefly explain the reasons for this minor and perhaps rather technical disagreement.

4 . Article 1 of Protocol No. 7 to the Convention, in so far as relevant, provides that:

“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) ... .

2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

5 . There being no dispute that the applicant had been “lawfully resident” in the territory of the Respondent State, the Respondent Government based its objection ratione materiae inter alia on the fact that the applicant (a) had not, in fact, been “expelled” but was still resident in the Respondent State and (b) had, in fact, been given permission by the Ministry of the Interior to leave the country and, importantly, to re-enter the country (see § 13 of the judgment); in fact, she was permitted to re-enter the country “one month after the expiry of the time-limit for returning” ( ibid. ). There had, so the Government ’ s submission, in fact been no “expulsion decision” in her case but only a decision terminating her right to asylum on grounds of national security and notifying her that she “should voluntarily leave the territory of the Republic of Macedonia” (§ 3 of the Written Observations of the Respondent Government).

6 . The Explanatory Report to Protocol No 7 to the Convention makes clear, at § 10, that the concept of “expulsion” in Article 1:

“ ... is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition co ntained in domestic legislation.”

7 . This approach, which is also consistent with the construction of the term “expulsion” in other provisions containing equivalent obligations, among the Member States of the Council of Europe, or between them and other States, under international instruments such as the Geneva Convention relating to the status of refugees of 1951 (Article 32) and the International Covenant on Civil and Political Rights of 1966 (Article 13), has been confirmed by the Court in the few cases in which it has had to consider this issue. As a consequence, in its decision in Bolat v. Russia , no. 14139/03, § 79, ECHR 2006 ‑ XI (extracts), the Court held that “ the notion of “expulsion” is an autonomous concept which is independent of any definition contained in domestic legislation. With the exception of extradition, any measure compelling the alien ’ s departure from the territory where he was lawfully resident, constitutes “expulsion” for the purposes of Article 1 of Protocol No. 7 ”. On the facts of that case, however, the issue did not pose any real problems as the Court went on to find that “ [t]here is no doubt that by removing the applicant from his home and placing him on board an aircraft bound for Turkey, the domestic authorities expelled him from Russia ”.

8 . However, the potential breadth of the autonomous concept of “expulsion” was made clear by the Court ’ s judgment in Nolan and K. v. Russia , no. 2512/04, § 112, 12 February 2009, where the decision under consideration was an exclusion decisio n preventing return to Russia. The Court reiterated its definition in § 79 of Bolat and held that:

“ The Court has no doubt that by issuing a decision of such nature as to bar the applicant from returning to Russia following his next trip abroad, the Russian authorities sought to prevent him from re-entering Russian territory and to compel his definitive departure from Russia. The applicant may therefore be considered to have been “expelled”. ”

9 . In both these cases, the decision at issue led to the “definitive departure” of the applicant from the respondent state enabling the Court in both cases to find that there “has been a vio lation of Article 1 of Protocol No. 7”.

10 . By contrast, in the present case, there has been no “definitive departure” of the applicant from the territory of the Respondent State; quite the contrary, the applicant having left the territory and having remained outside the territory beyond the time-limit of her re-entry, permission was nevertheless (and despite the findings that she posed a threat to national security) granted for her to re-enter the territory of the Respondent State where she remains to this day with her family.

11 . It is this factor which led me to conclude that it would be stretching the autonomous meaning of “expulsion” too far if it were also to include situations in which the decision at issue did not lead to, or was not enforced so as to lead to, the departure of the applicant (whether “definitive” or otherwise) from the territory of the respondent state; [2] after all, what Article 1 of Protocol No 7 to the Convention prohibits is the expulsion (“shall not be expelled”) and not the decision per se . As a consequence, in my view, any violation of Article 1 of Protocol No 7 to the Convention would only occur or would only have occurred as and when the departure of the applicant from the territory of the Former Yugoslav Republic of Macedonia is or had been enforced.

12 . This conclusion on the merits, however, takes us back to the preliminary objection ratione materiae of the Respondent Government. Why then, it might be said, is this complaint within the material scope of Article 1 of Protocol No 7 to the Convention at all if there is, on the facts before the Court, no actual expulsion?

13 . For me the answer lies in the fundamental need for the Convention “ ... provisions [to] be interpreted and applied so as to make its safeguards practical and effective ( ... ). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society" ” ( Soering v. the United Kingdom , 7 July 1989, § 87, Series A no. 161) and in the nature of the decision at issue in the present case.

14 . The applicant translates (Applicant ’ s reply to the Government ’ s Written Observations at § 5; a translation the Respondent Government does not dispute) the relevant aspects of the decision of 3 February 2014, in which the Ministry of the Interior terminated her residence on the basis that she was “a risk to [national] security” and ordered her to leave the country, as follows:

“ The above stated [The Applicant] is obligated to vacate the territory of the Republic of Macedonia within 20 days upon receipt of the final Decision. ”

15 . On the evidence available to the Court, it seems to me to be clear, therefore, that the decision was plainly intended to achieve the departure of the applicant from the territory of the respondent state and, as such, fell squarely within material scope of the procedural safeguards provided for by Article 1 § 1 of Pr otocol No 7 to the Convention. To reject any complaint against such a decision as inadmissible ratione materiae on the sole basis that the applicant remains on the territory of the respondent state at the time of making his or her application (and/or makes his or her application before being, in fact, “expelled”), in my view, would render the procedural safeguards provided by Article 1 of Protocol No 7 theoretical and illusory rather than practical and effective.

16 . This is further underlined by the fact that Article 1 § 2 of Protocol No 7 to the Convention, unlike e.g. Article 13 ICCPR or Article 32 of the Geneva Convention relating to the status of refugees of 1951, expressly permits expulsion before the rights in Article 1 § 1 thereof have been exercised but only “when such expulsion is necessary in the interests of public order or is grounded on reasons of national security”. In the present case, the Respondent Government has not sought to rely on this exception.

[1] 1. All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nati ons Security Council Resolution 1244 and without prejudice to the status of Kosovo.

[2] 1. See, in this context, the earlier decision in Naumov v . Alban ia ( Dec .), no 10513/03, 4 January 2005 , in which the question whether “expulsion” could cover an unexecuted deportation order (arising out of an order depriving the applicant of his nationality) was left open with the Court declaring the complaint under Article 1 of Protocol No 7 to the Convention inadmissible as manifestly ill-founded (rather than ratione materiae ).  The Court noted, however, that “ … the applicant was never in fact expelled from Albania, no steps having been taken to enforce the pol ice orders of 29 September or 5 October 2001. Moreover, the applicant was able to submit reasons against his expulsion and his case reviewed by the national courts, which on 20 March 2003 declared the orders to be null and void following the annulment of the presidential decree revoking the applicant's Albanian citizenship ”.