CASE OF S.B. v. NORTH MACEDONIA

FIFTH SECTION

CASE OF S.B. v. NORTH MACEDONIA

(Application no. 64163/19)

JUDGMENT
 

STRASBOURG

30 November 2023

This judgment is final but it may be subject to editorial revision.

In the case of S.B. v. North Macedonia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 64163/19) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 December 2019 by a Serbian national, S.B., who was born in 1981 and lives in Skopje (“the applicant”), and who was represented by Mr D. Gjorchevski, a lawyer practising in Skopje;

the decision to give notice of the complaints concerning Article 1 of Protocol No. 7 to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 9 November 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged inability of the applicant to challenge evidence relied on by the domestic authorities in proceedings for her expulsion.

2.  The applicant, a Roma who fled Kosovo[1] in 1999, was granted refugee status in the respondent State and appears to have been living there ever since, currently with her partner and her five children. On 9 March 2017 the Ministry of the Interior (“the Ministry”) issued a decision terminating the applicant’s refugee status on grounds of national security and ordering her to leave the country. The decision was preceded by an interview at which the applicant, who had been legally represented, had confirmed her family situation and her intention to marry her partner. She had also stated that she had not had any problems with the police authorities. Whether the applicant represented a security risk was not discussed at the interview.

3.  The applicant, through her lawyer, challenged the decision terminating her refugee status, arguing that there was no evidence that her presence in the respondent State represented a threat to national security. On 3 January 2018 the Administrative Court dismissed the applicant’s appeal and upheld the decision of the Ministry, noting, inter alia, that the Ministry had knowledge of information relevant to section 6(2) of the Asylum and Subsidiary Protection Act, which provided that an alien could not be granted asylum or subsidiary protection if he or she represented a threat to national security. The court also found that the statements made at the interview were insufficient for it to arrive at any other conclusion given the findings by the Ministry. In a final judgment of 7 June 2019, the Higher Administrative Court upheld the Ministry’s decision and found that, in any event, the legal prerequisites for granting the right to asylum had ceased to exist and it was open to the applicant to regularise her stay on different grounds. The court referred to information obtained by the Ministry about the human rights situation in Kosovo. In response to the applicant’s argument that she had not been able to challenge the evidence of her being a threat to the national security, it added that although such evidence had been assessed by the court, it had not been decisive for the judgment in her case.

4.  The applicant complained under Articles 3, 13 and Article 1 of Protocol No. 7 to the Convention that she would be at risk of ill-treatment if expelled, that there was no effective review of her case domestically, and that she had not been given an opportunity to have knowledge of and to comment on the evidence in question.

THE COURT’S ASSESSMENTAdmissibility

5.  The Government argued that the applicant’s complaint was incompatible ratione materiae with Article 1 of Protocol No. 7 to the Convention, as the de facto expulsion of the applicant from the respondent State had been subject to a separate expulsion order by the Ministry, whereas in the impugned decision the applicant had been asked to leave the territory of the respondent State voluntarily.

6.  The Court considers that the present case is to be distinguished from the cases of Vijayanathan and Pusparajah v. France (27 August 1992, Series A no. 241-B) and Asy v. Romania (dec.) [Committee] (no. 60700/21, 22 June 2023). In the former case, following an order directing to leave France, both applicants were given warning that an order for expulsion could be issued (see Vijayanathan and Pusparajah, cited above, §§ 10 and 15). Similarly, in the latter case, the Bucharest Court of Appeal, by noting that the enforcement of the return order was not imminent, granted the applicant a “tolerated” residence permit (see Asy, cited above, § 14). As to the objection of inadmissibility ratione materiae raised by the Government under Article 1 of Protocol No. 7 to the Convention, the Court notes that it has already considered it and dismissed it in a previous similar case (see Ljatifi v. the former Yugoslav Republic of Macedonia, no. 19017/16, § 22, 17 May 2018). As regards the argument submitted by the Government that a separate order by the Ministry was needed for de facto expulsion, the Court notes that the decision as it stood contained an explicit order compelling the applicant to leave the respondent State within a specified time-limit, without being subject to any further formal requirements. In any event, it considers that such a subsequent order would have served only the purpose of operationalising the explicit order in the decision of 9 March 2017 adopted by the same authority. The mere fact that the order has not been enforced to date, is insufficient for the Court to conclude that the order compelling the applicant to leave the respondent State is no longer in force or that it cannot lead to her expulsion (ibid.).

7.  Accordingly, the decision of 9 March 2017 is to be regarded as a measure of expulsion in respect of the applicant, which falls within the ambit of Article 1 of Protocol No. 7 to the Convention. The Government’s objection must therefore be dismissed.

8.  The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.merits

9.  The general principles concerning Article 1 of Protocol No. 7 to the Convention have been summarised in Muhammad and Muhammad v. Romania ([GC], no. 80982/12, §§ 114-57, 15 October 2020).

10.  The Court notes that no issue arises as to the lawfulness of the decision compelling the applicant to leave the respondent State (see Ljatifi, cited above, § 34).

11.  In so far as the applicant’s procedural rights in the proceedings before the domestic courts are concerned, the Court notes that the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights should be subject to some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence (see Muhammad and Muhammad, cited above, § 128). No issue arises as to the independence of the administrative courts within the meaning of the Court’s case-law (see S.C. v. Romania, no. 9356/11, § 73, 10 February 2015; see also, among many other authorities, for the definition of an independent tribunal, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009); the only salient point to be examined is the assessment by the domestic courts.

12.  The Court observes that the Ministry’s decision of 9 March 2017 compelling the applicant to leave the respondent State simply stated that the measure was being taken on grounds of national security and contained no indication of the facts serving as the basis for that assessment; it was also undisputed by the Government that no criminal proceedings had been brought against the applicant in relation to any offence either in North Macedonia or in any other country. In the ensuing judicial proceedings, the Administrative Court noted that the Ministry’s decision of 9 March 2017 had been lawful and related to facts arising from the interview with the applicant (see paragraph 3 above), but failed to elaborate on the evidence on which the decision had been based. On appeal, the Higher Administrative Court upheld the Ministry’s decision and found that the legal prerequisites for granting the right to asylum had ceased to exist, referring for the first time to the situation in Kosovo (based on information obtained by the Ministry), taken together with statements made at the interview (see paragraphs 2 above). There was no right of appeal against the Higher Administrative Court’s judgment. The fact that neither the applicant nor her representative had been able to challenge the reasons for her expulsion, which was based on different grounds from those given in the proceedings before the Ministry and the Administrative Court, raises an issue. The Court further considers that granting the applicant or her representative the opportunity to make submissions on the information relied on by the Higher Administrative Court was all the more necessary because it had formed a new basis on which that court had found that her continued residence in the respondent State was unlawful.

13.  The Court further observes that in the judgment of 7 June 2019, the Higher Administrative Court considered that, although the decision of 9 March 2017 was relevant, it had not been the key evidence in support of the decision to terminate the applicant’s right to asylum (see paragraph 3 above). In making its own assessment of the weight of the evidence in question in the light of the Higher Administrative Court’s findings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 124, ECHR 2015), the Court notes that, if the Ministry had not adopted the decision of 9 March 2017 considering the applicant to be a security risk, there would have been no ensuing judicial proceedings whatsoever. Moreover, the information contained in the decision in question formed part of the administrative courts’ assessment, given that they took it into consideration when examining the applicant’s appeal. The Court is compelled to conclude that, although the decision in question and the information contained therein was not the sole evidence against the applicant in the proceedings before the Higher Administrative Court, it was certainly decisive.

14.  In the proceedings before the Court, the Government produced a declassified version of the note on which the decision had been based; the only fact included in that note which was sufficient to consider the applicant to be a security risk was her alleged knowledge of and support of the criminal activities of her common-law partner and his father. Lacking even an outline of the facts which had served as a basis for the assessment in the proceedings before the Ministry, the applicant was not able to present her case adequately in the ensuing judicial review proceedings; moreover, no steps were taken by the administrative courts to verify the accuracy and credibility of the note relied on by the Ministry. Accordingly, they failed to subject the Ministry’s assertion that the applicant posed a national security risk to meaningful scrutiny (see Ljatifi, cited above, §§ 39-41).

15.  In conclusion, having regard to the proceedings as a whole and taking account of the margin of appreciation afforded to the respondent State, the Court finds that the limitations imposed on the applicant’s enjoyment of her rights under Article 1 of Protocol No. 7 were not counterbalanced in the domestic proceedings in such a way as to preserve the very essence of those rights; against this background, the Court finds that there has been a violation of paragraph 1 (a) and (b) of Article 1 of Protocol No. 7 to the Convention.OTHER COMPLAINTS

16.  The applicant also complained that her fear that she would be abused and mistreated if expelled to Kosovo was putting her under psychological pressure. Furthermore, the administrative courts had not provided an effective review of her case. She relied on Articles 3 and 13 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings set out above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,243 in respect of costs and expenses incurred before the Court.

18.  The Government submitted that the applicant’s claim was excessive and unsubstantiated.

19.  The Court considers it reasonable to award the applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable (see Ljatifi, cited above, § 49).

20.  The Court considers it reasonable to award the applicant EUR 1,243 for costs and expenses in the proceedings before it, plus any tax that may be chargeable to her. This amount is to be paid into the bank account of the applicant’s representative.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints concerning Article 1 of Protocol No. 7 to the Convention admissible;Holds that there has been a violation of Article 1 of Protocol No. 7 to the Convention;Holds that there is no need to examine the admissibility and merits of the complaints under Articles 3 and 13 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,243 (one thousand two hundred and forty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President

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

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