Analysis of the freedom of movement through a judgment of the Appellate court Skopje

Analysis on judgement ГЖ - 587/17 of the Appellate court Skopje, by Mirjana Najchevska, PhD. 

1. Description of the case
This analysis concerns a court case of claim against violation of the equality right (discrimination), violation of the right of free movement in and out of territory of the Republic of Macedonia, and violation of the honor, reputation and dignity - all done by state body (Ministry of Internal Affairs).
The respondent (Ministry of Internal Affairs – Skopje) prevented the plaintiff (Macedonian citizen of Roma ethnicity) in two occasions to leave the territory of the Republic of Macedonia (in 2014) on a legal border crossing and in a legal manner. Her passport was in order; she had return air ticket, i.e. bus ticket as well as necessary documentation for legally crossing the border.
The respondent (represented by the State Advocate of the Republic of Macedonia) does not deny that they prevented the plaintiff to leave the state territory; however, they believe that it is not a violation. In its defense, the respondent refers to provisions of the Law on Border Control and their duty to prevent illegal movement, protection of the Constitution and the laws of other states members of EU as well as the internal regulations of the ministry. They acted on information that the plaintiff had been previously deported by the state to which she traveled.
During the procedure, the respondent did not deny that in adopting the decision to stop the plaintiff leaving the state the fact that she was of Roma origin did play a role. Even, the respondent itself offered proves in this direction stating that “… this treatment of plaintiff was based on her ethnic affiliation alone, as Roma, because in that period the migration out of the State of people belonging to this ethnic group, particularly toward FR of Germany and part of them requesting asylum in that state was significantly increased.”
The first instance court judgement established violation of the right of free movement (explaining that it was not illegal movement; that the Republic of Macedonia does not act based on the laws of other states; and that there is no proof that the plaintiff either was deported from Germany or that she requested asylum in that state). Hence, the act of stopping her was discriminatory. Furthermore, it was established that there was violation of the honor and reputation; hence, punitive damage was afforded in the favor of the plaintiff.
Yet, the primary judgement does not afford compensation of the material damage for the plaintiff and does not sanction the respondent’s violation of the law.
The respondent appealed this primary judgement complaining on: violation of the procedure wrongly and incomprehensibly established facts; as well as wrongly applied material provisions of the law.
The Appellate court with judgement (ГЗ-587/17) refuted the appeal as unfounded and confirmed the primary judgement.
2. Relevant National and International Law
In the adopting the judgement, the Appellate Court (the Court) refers to:
The Constitution of the Republic of Macedonia - articles 9 & 27 where it is stipulated: ‘The citizens are equal in front of the Constitution and the law’ & ‘Every citizen has the right to leave the territory of the Republic and to come back to the Republic’;
The Law on Prevention and Protection from Discrimination (Official Gazette of the Republic of Macedonia No. 50 / 2010) – articles 3, 4, 6 paragraph 1, and 7 paragraph 1 where the basis for discrimination is stated; the obligation of the Sate to act equally to the citizens and not to allow discrimination; and direct discrimination, harassment and complex forms of discrimination are defined;
The Law on Border Control (Official Gazette of the Republic of Macedonia No. 171 / 2010) – articles 4 & 2 that stipulate that border control encompasses prevention and detection of illegal migration and human trafficking, and which is applicable to all persons crossing the state border of the Republic of Macedonia;
The Law on Contractual Relations (Official Gazette of the Republic of Macedonia No. 18 / 2001) – Article 189 that stipulates just compensation; and
The Universal Declaration of Human Rights (Article 13), the International Covenant on Civil and Political Rights (Art. 12), the European Human Rights Convention (Protocol 4, Article 2 paragraph 2 – Everyone shall be free to leave any country, including his own).
3. The Judgement
The Court refuted the appeal of the respondent and confirmed the judgement of the Basic Court. This, per se, is step forward concerning the protection both of the civil rights and from discrimination. Furthermore, it is progress since the Court did not reverse the case for reexamination to the Basic Court but adopted its own judgement.[1]
On the other side, crucial problem is that the judgement lacks proper and meaningful explanation  that would, without any ambiguity, point out the arguments for the rebuttal of the appeal, and at the same time be basis for implementing of one of the functions of the court powers: ‘…advancement of the human rights and fundamental freedoms…’ (Article 3 of the Law on Courts).[2]
In its judgements, the European Court on Human Rights (ECrHR), particularly those regarding the right on fair trial[3], emphasizes the importance of proper reasoning in the court decision of the national courts. This accent is also present in the ECHR’s judgements v. Macedonia, clearly pointing out the lack of adequate reasoning in the judgement of the domestic courts.[4]
In this, analyzed judgement, the Appellate Court states that the appeal is ill founded and that there is no essential violation of the litigation procedure as of Art. 343-para.2 streak 14. However, there is no explanation; simply stating opposing opinion in relation to the elements of the cited Article of the Law on Litigation Procedure (LLP). Hence, one cannot see why the Court believes that there were no essential violations of the litigation procedure. This does not mean that such violations did exist, but only that there is no reasoning convincing the reader in this direction.
The Court also refused as ill-founded the appeal in the allegation that the Basic Court wrongfully established the factual situation based on the offered proves referring to the Articles 7 & 8 of the LLP. The reasoning of the Court is more a simple copy of the reasoning of the Basic Court, pointing out that: “the plaintiff had guaranty issued by her aunt… [while] the respondent did not offer any proof that the plaintiff in 2013 was deported by the mentioned state [Germany] requesting asylum”. Having in mind that the respondent is state body, the lack of such proof while claiming it exists has to be addressed as problem of the system that needs further investigation.
Estimating the elements of the appeal regarding the in-merit aspect, the Court excessively cites the Macedonian Constitution (Art. 9 & 27), the articles of the Law on Prevention and Protection from Discrimination and the provisions of the ratified international law. Yet, all those provisions were already cited by the Basic Court and relating them to the violation of the equality and freedom of movement of the plaintiff. The only relation between the limitation of the movement and the discrimination that shows why the Court believes that all those provisions were rightly applied by the Basic Court is stating that: ‘…out of the during the procedure offered proves steam that the respondent treated the plaintiff as established only due to her ethnic belonging’.
In its reasoning, the Court, in spite of clear factual situation corroborated by the respondent itself, does not point that the freedom of movement was restricted only due to belonging to exactly Roma ethnicity, and that it was not only an individual case but general approach of the Ministry of Internal Affairs. Pointing out such a problem within the reasoning of the judgement is of utmost importance in cases of discrimination done by state body in order to prevent same or similar cases.
4. The Importance of the Judgement
The prevention and protection from discrimination is novelty for the national courts (both from the aspect of the essence of the rights involved and of the procedurale one). Adopting judgements establishing existence of discrimination based on individual initiating litigation process is of utmost importance and every judgement in this direction is step forward to protecting equality.
Having said that, there is also one much wider importance of the antidiscrimination judgements than simply stopping the discriminatory acting in concrete case and compensating the victim. These judgements should identify the patterns of discrimination, particularly where the discriminator is the State itself and its institutions. In the analyzed case, the judgement of the Appellate Court refuting the appeal of the respondent (the Ministry of Internal Affairs) confirming the ruling of the Basic Court establishing discrimination is not only supposed to enable protection of the individual right but need to have preventive component – creating favorable condition for preventing same or similar cases of discrimination.
In order to achieve such importance, the Court must use the reasoning of the judgement to point out the omissions of the respondent that led to discriminatory activities, to emphasize the increased responsibility of the respondent (which is state body) concerning potential reoccurrence of discrimination, and to initiate possible change in the respondent’s performance of duties.
By attaching itself to the “usual practice” and usual formal reasoning, the Appellate Court did not break the law; it only missed the opportunity to give adequate and comprehensive reasoning and to point out that this is not first case of such performance of the respondent;.[5] The court did not use, although citing them, the provisions of the Law on Prevention and Protection from Discrimination, as well as the European Convention on Human Rights. Furthermore the judgements of the ECHR, the chance to send message to the Ministry of Internal Affairs concerning its duties as state body in detecting individual responsibility for discriminatory activities and precluding such cases in future.
Missing these opportunities, the Court also missed to influence, directly or indirectly, upon the effectiveness of the very courts’ function in protecting human rights which is not interconnected only to the existence of effective legal remedy, but also to the wider legal and political context. [6] In this concrete case, if taken in consideration that this case is part of the wider, well renown discrimination of the Roma ethnicity and whose individuals have no always condition to access the justice system, it is of utmost importance that the court create condition the discrimination not to be repeated by same perpetrator, meaning the involved state body.
The lack of clear reasoning in the judgement only compiles up on the lack both of whatever sanctioning of the discrimination perpetrator and of compensation of the real damage (even if possible restitutio in integrum), that should discourage further cases of damage. [7] Finally, the effectiveness of one legal remedy (particularly involving state bodies) is directly proportional to comprehensive compensation of the victims and thus preventing reenacting either to the same or some other victims in identical or similar situation.
It is of utmost importance to use the reasoning of the judgement to emphasize that the respondent did not prove that they did not committed discrimination (in order to promote the provision on the shift of the burden of proof to the respondent), and to underline the necessity of reconsideration of the procedures of the Ministry of Internal Affairs, as well as the adequacy of their by-laws and instructions of the staff through the lenses of the Law on Prevention and Protection from Discrimination.
This enhancement of the understanding of the courts’ judgements is in correlation to and the intentions to harmonize the national to the model of judgements of the European Court of Human Rights, as well as positioning the justice system as the third pillar of the government of the State.[8]



[1] This is conformity to the recommendations of the European Court of Human Rights; see for instance, Ziberi v. Macedonia (2007; 27866/02); Pavliulinets v. Ukraine (70767/01, 2005); Vierciszevska v. Poland (41431/98, 2003)
[2] Law on Courts, Official Gazette No. 58 / 2006 (last amended in 2018)
[3] Article 6 of the European Convention on Human Rights
[4] The judgements of the ECrHR in the cases Atanasovski (Application No. 36815/03 – Judgement of 14 Januari 2010) and Stoilkovska v. Republic of Macedonia (Application No. 29784/07 – Judgement of 18 July 2013)
[5] Case J.S. v. MIA of 11.04 2014, Basic Court 2, Skopje (where the judgement is virtually identical, including the compensation sum for the pecuniary damage)
[6] Case: Đorđević v. Croatia, App. No. 41526/10, 24 July 2012, paragraph 101; Van Oosterwijck v. Belgium, App. No. 7654/76, judgment of 6 November 1980, paragraphs 36-40.
[7] Case: M.S.S. v. Belgium and Greece, App. No. 30696/09, judgment of 21 January 2011, paragraph 288; Halford v. the United Kingdom, App. No. 20605/92, judgment of 25 June 1997, paragraph 64.
[8] See Lazarova-Trajkovska M., Delovski G., Naumovski G. (2018), Legal Argumentation, Structure and Reasoning of Judgements – Draft Program for advanced education of judges, expert legal associates and other target groups, Centre for Legal Researches and analysis, Skopje