Prohibition of discrimination and freedom of movement
Analysis on judgment Rev.2no.227/2016 of the Supreme Court of Republic of Macedonia, by Aleksandar Godjo.
Summary of case facts[1]
The Plaintiff is a citizen of RM, of roma ethnicity, a musician by vocation, which works in a band and had multiple travels abroad. The Plaintiff on 25.10.2014 travelled by bus and arrived on the border crossing T, heading to V. to visit his very ill cousin A. During the passport control by the authorized police official of MIA, the plaintiff declared that it had with him 500 EUR. The plaintiff's passport was not returned alongside three other individuals from Prilep, which did not possess appropriate documents and all of them were prevented from crossing the border. The lower courts determined that the witness I.D prepared an official note no.25.7-7/6743 of 26.10.2014 , Sector RC for GR S.PS for GP.-T. in which it was noted that on 26.10.2014 at 1:13 on border crossing –T in accordance with article 15 (4) of the Law on order control and threat to public policy and international relation of RM with member states of EU exit has not been allowed from RM to the persons Fazli Demirivski of B, A.H, F.B and N.B, three of them from P. which persons arrived by bus model "MAN", property of T.T.S. After performed BC and search in OE, interview was held with the persons which declared that they are traveling to A, and by their statements where they would remain approx. 30 days, but do not possess invitation or a written guarantee, nor a hotel reservation, no funds for the intended stay and provide incorrect statements for the purpose and circumstances of the travel and stay abroad which leads to conclusion that they have intention to seek asylum in EU countries and accordingly no exit was allowed from RM. The plaintiff was not provided with a document with reasoned explanations that he has been barredfrom crossing the border. One week later the plaintiff was allowed to cross the border. The plaintiff considers that due to the fact that he is of roma ethnicity he was barred from exiting and was subject to a breach of his right to an equal treatment, and accordingly filed the claim .
Proceedings before the lower courts
Basic court Berovo with a Verdict established that there has been a breach of right to equality by not allowing to cross the state border. The Verdict was quashed with a Decision by the Appellate court. On the re-trial, Basic Court Berovo again determined that there was a breach of the right of equality by not allowing crossing of the state border. Reasons remained the same as in the quashed verdict. Following an appeal by the State Attorney, the Verdict has been overturned and the request was denied. The reasons for denying the claim can be summarized as follows: The plaintiff did not fulfil the conditions required to travel to his destinationand the authorized officials had a legal right when performing the border control also to invoke the Regulation EZ.562/2006 of the European Parliament and article 5 of the Schengen border code.
Context
The broader context of this case originates in the times when the visa regime which was in place towards the citizens of Republic of Macedonia, was lifted Visa liberalisation brought a dramatic increase of travellers from Republic of Macedonia towards member states of the Schengen visa regime. Many travellers found an opportunity in this easier way of travel not only for a possibility of prolonged stay abroad, but also economic migration, including requests for asylum in the foreign countries with ultimate aim to emigrate there.
Explanation of the Verdict of the Supreme Court
The limits of explanation of a Verdict of the Supreme court have been set by the procedural law on civil proceedings.[2] Although it would be expected from the Supreme court to provide more detailed explanation, especially as it is the highest court, the general perception is that the Supreme court provides sometimes short explanations on its decisions vis a vis sometimes lengthy and exhaustive submissions provided in a revision.
The Scope of examination by the Supreme court is not only the decision of the lower courts , in concreto the Verdict of the Appellate court by which the basic court’s verdict was overturned, but also the extraordinary legal remedy itself, which practically challenges the Supreme court to act.
In this context, the Revision uses the submissions for essential breaches through wrong analysis of the facts and evidence as a pretext for the submissions of essential breaches, and so, the Supreme court in its explanation, accepts as correct and accurate the facts as established and determined by the lower courts.
Still, the Supreme court notes that the pleaded submissions according to article 343 line 1 in relation to article 8 of ZPP (which prescribes the free judicial conviction in the evaluation of evidence)[3], are not a ground to challenge the Verdict of the Appellate court and by that it is not possible tochallenge the evaluation of evidence, nor the determined facts, especially if it is taken into consideration that the second instance court accepted in full the facts as determined by the first degree court.[4] With this explanation, the Supreme court places ad actathe pleadings for essential breaches.
In relation to the revision pleadings for alleged essential breaches
Supreme court in one paragraph rejects as unsubstantiated the revision pleadings for essential breaches, due to clarity and intelligibility of the impugned Verdict ( Appellate court Stip Gz.br.1243/15 of 27.01.2016) [5]
As we stated above, the limits of examining the impugned verdict are limited by what is pleaded with the revision, which also needs to be well elaborated.[6] Bearing in mind that neither the lower court nor the Supreme court have rejected the revision under this ground, it means that the revision contains and satisfies the formal and substantive requirements according to which renders it eligible for examination-which means that it was well reasoned. Still, despite the narrow scope of examination in relation to the essential breaches, the Supreme court save from a single paragraph, did not provide more detailed redress to the submissions in the revision in this part.
In relation to the revision pleadings relating to the wrong application
of substantive law
In terms of submissions for wrong application of the substantive law, the Supreme court provides a bit more detailed explanation, by which , understandably rests on the determined facts of lower courts as a source for legal argumentation and application of the substantive law by the lower courts, by which obiter agrees the Supreme court as well.
It is quite interesting and deserves attention the fact that the revidient invokes inter alia in the part of the application of the law and inability of lower courts to invoke regulations of EU as a source of law, until Republic of Macedonia becomes a member state of European union. In this respect, the plaintiff quotes excerpts of this regulation with following :Macedonia is not a member of the Schengen alliance, It is not ratified in accordance with the Constitution, The Regulations in accordance with the article 288 of the Agreement for functioning of the European Union are binding only for the member states of EU.
The Supreme court in the explanation contained in 2 paragraphs, in regard to the application of substantive law, does not turn attention to those pleading in the revision, although the revidient invokes a clearly a question of substantive law, not only from an aspect of its application but also from the standpoint of which law and which regulation is in fact in power in the Republic of Macedonia, as the invoked one does not appear to be in the legal order from the Republic of Macedonia’s standpoint, or is at least vacatio legis debatable.
Remaining pleadings in the Revision
As in other cases, the Supreme court uses already set terminology , in which it states that “...it had assessed the other pleadings in the revision, but found that they have no bearing to warrant different determination “.[7]However, it is no easy task to identify which are the remaining submissions, which were subject to assessment and what is more important, why the Supreme court found that they have no bearing for different adjudication. This is primarily due to the fact that the Supreme court does not provide an answer also to the question which submissions made in the revision were exactly subject to assessment, so that answer would be easier to find which are the “remaining ones”.It appears that the Supreme court does not confine itself to the assessment of the submissions in the Revision, but assesses the Second degree verdict which in the instant case is the impugned decision with the extraordinary legal remedy. There is a lack of more detailed identification of the submissions of the revision, discussions and conclusion why the submissions in the revision are ill-founded, especially on the grounds relating to the essential breached stated above, but also in the part relating to the misapplication of the substantive law.
Conclusion
It appears, at the end, that the Verdict of the Supreme court according to the legislation in Macedonia is formally in accordance with the domestic legal order and juridical practice, above all from formal side. However, the application of law and the understanding of the concept of reasoning of judicial decisions, as they have been set with the legal reasoning of the ECHR and the expectation of the litigants may be viewed as and interpreted as they have not been met in such measure as required by the ECHR on one side, and also the necessity to provide a more reasoned judicial decision, especially in case s involving basic human rights and absolute principles as non-discrimination on the other.
The subject matter of this case is discrimination. In the present state of development of humanity and society, this is considers an absolutely prohibited action in a society. Therefore, especially when they have been called to decide on questions which are relevant to the basic human recognized rights(as in this case discrimination), the obligation upon the courts to provide for reasoned judicial decisions is thus greater, which finds reasoning in the fact that the protection against discrimination is on the highest pedestal alongside the other human rights recognized today. Moreover, the existence of previous final judgements with almost identical, and in any case similar cases, where the right to equal treatment has been found to be violated before the courts in the Republic of Macedonia, places the Supreme court in a position to secure the unified implementation of the laws which is a constitutional premise.[8][1] The summary of case facts was extracted as provided in the Verdict of the Supreme Court, which represents a summary version which accurately portrays the facts as determined by the lower courts..
[2] Article 384 of ZPP
[3] Article 8 of ZPPP иrticle 384 of ZPP page 2 para 4Macedonia Rev.2. br 227/2016 of 26.10.2017 page 2 para 4
What facts will be taken as proven by the court in accordance with their conviction on the basis of a conscientious and careful assessment of each evidence separately and on all evidence. 2016 of 26.10.2017 page 2 para 4Macedonia Rev.2. br 227/2016 of 26.10.2017 page 2 para 42016 of 26.10.2017 page 2 para 4Macedonia Rev.2. br 227/2016 of 26.10.2017 page 2 para 4
[4] Verdicf of the Supreme court of Macedonia Rev.2. br 227/2016 of 26.10.2017 page 2 para 4
[5] Ibid, page 2, para 5
[6] Article 383 of ZPP
(1) Untimely, Incomplete, Unreasoned or unallowed revisions shall be rejected by the court raporteur with a decision, if that was not done within the limits of its authority by the basic court.
(2) Revision filed against the second instance verdict of article 372 (4) of this law shall be rejected by a decision by court raporteur , and if he did not, the councl of the revision court, if it determines that it was not filed due to legal question for which it was allowed.
(3) The Revision filed against the second degree verdict of article 372 (4) of this law the revision court shall not reject even if it decides that for the legal question for which it has been submitted it is not important for securing unique application of the law and unifying judicial practice.
[7] Ibid, page 4, penultimate paragraph.
[8] Article 101 of the Constitution, Article 37 of the Law on Courts.
A broader analysis of the judgment is available on the following link.