Decision U.no.189/2012

U.no.189/2012

The Constitutional Court of the Republic of Macedonia, pursuant to Articles 110 and 112 of the Constitution of the Republic of Macedonia, and Article 70 of the Rulebook of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” No. 70/1992), at the session held on 25 June 2014, adopted the following

DECISION

1. TO REPEAL Article 37, paragraph 1, line 6 and Article 38, paragraph 4 of the Law on Travel Documents of Citizens of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” No. 67/1992, 20/2003, 46/2004, 19/2007, 84/2008, 51/2011 and 135/2011).

2. This Decision will be published in the “Official Gazette of the Republic of Macedonia”.

3. The Constitutional Court of the Republic of Macedonia with Decision U.br. 189/2012 from 16 April 2014 initiated procedure for assessing the constitutionality of Article 37 paragraph 1 line 6 and Article 38 paragraph 4 of the Law on Travel Documents of Citizens of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” No. 67/1992, 20/2003, 46/2004, 19/2007, 84/2008, 51/2011 and 135/2011) after the conformity of these articles with the Constitution was justly brought into question.

4. At the Session the Court concluded that pursuant to Article 37 paragraph 1 line 6 of the Law on Travel Documents of Citizens of the Republic of Macedonia, the filed request for issuing a passport or a visa will be refused and no passport or visa will be issued if the person is forcibly returned or expelled from another country for having violated that country’s regulations for entry and stay.

Pursuant to the disputed Article 38 paragraph 4 of the Law, the grounds for refusal of requests for issuing a passport or a visa laid down in Article 37 paragraph 1 line 6 of this Law shall be considered concluded after expiry of a period of one year from the day when the decision under Article 39 of this Law is made.

5. Pursuant to Article 8 paragraph 1 line 1 of the Constitution, the fundamental human rights and freedoms recognized by the international law and guaranteed by the Constitution represent fundamental values of the constitutional system of the Republic of Macedonia.

Article 9 paragraph 1 of the Constitution lays down the right to equality of the citizens of the Republic of Macedonia in their freedoms and rights, regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status, while the right to equality of citizens before the Constitution and the Law is laid down in paragraph 2 of the same article of the Constitution.

Article 27 of the Constitution guarantees to every citizen of Republic of Macedonia the right to freedom of movement and the right freely to choose one’s residence on the territory of the Republic of Macedonia, as well as the right to leave and to return to the territory of the Republic.  The enjoyment of this right can be restricted by law, only in cases where it is necessary for the protection of the security of the Republic, for conduct of criminal proceedings or for protection of public health.

At international level this right is regulated in all international instruments for protection of the human rights and freedoms, adopted both at universal and regional level.

Pursuant to Article 13 paragraph 2 of the Universal Declaration of Human Rights, every person has the right to leave the country, including one’s own, as well as to return to one’s country.

Pursuant to Article 12 paragraph 2 of the International Covenant on Civil and Political Rights, every person has the right to leave any country, including one’s own. These rights can be subject only to such restrictions which are necessary for protection of the national security, the public order, the public health or the moral or rights and freedoms of other persons and are consistent with the other rights recognized in the present Covenant.

The UN Convention on the Elimination of All Forms of Racial Discrimination, in Article 5 provides for prohibition of all forms of racial discrimination in enjoying the right to leave the country: “In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

– The right to leave any country, including one’s own, and to return to one’s country.

The right to leave the country is guaranteed also by the Convention on the Rights of the Child. The Article 10 paragraph 2 stipulates that States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

This right and the permissible restrictions are formulated in a similar way also in the European Convention for the Protection of Human Rights and Fundamental Freedoms in Article 2 paragraph 2 of the Protocol no.4 to the Convention, according to which, everyone shall be free to leave any country, including his own. As laid down in paragraph 3, no restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

For the purpose of enabling conditions for realization of the above-mentioned right of the citizens of the Republic of Macedonia, in 1992 a Law on Travel Documents of Citizens of the Republic of Macedonia was adopted (“Official Gazette of the Republic of Macedonia” no. 68/1992, 20/2003, 46/2004, 19/2007, 84/2008, 51/2011 and 135/2011) which defines the types of travel documents and visas as well as the procedure of their issuing.

The Article 2 of the Law stipulates that for travels abroad of citizens of the Republic of Macedonia a travel document is needed as prescribed in the present law, unless agreed otherwise by an international agreement. The Government of the Republic of Macedonia can determine if a visa is needed for travels abroad or to certain foreign states on the basis of international reciprocity, for protection of the security of the Republic of Macedonia or for protection of public health.

The types of travel documents are laid down in Article 3 of the Law, according to which as travel documents are considered: passport, collective passport, diplomatic passport, public officials’ passport and travel pass, as well as travel documents issued on the basis of international agreements.

Pursuant to Article 5 of the Law, the passport is defined as an electronic document for personal identification issued to a national of the Republic of Macedonia for travel and stay abroad, as well as for his/her return to the country.

According to Article 13 of the Law, the visa is an approval for travel abroad inserted in the travel document ascertaining that the holder of the travel document is approved crossing of the state border, for travel to the country appointed in the visa and during the time period stated in the visa. The visa is issued for one or more travels abroad.

Pursuant to Article 29 of the Law, the passport is issued upon request of the citizen.

The procedure for issuing of travel documents and visas is regulated under the provisions of Articles 25 to 43.

Within the frameworks of these provisions are contained also the disputed provisions related to the cases when an organ can refuse the request for issuing a passport or a visa, i.e. revoke the issued passport and cancel the visa.

Pursuant to Article 37 of the Law, the filed request for issuing a passport or a visa will be refused and no passport or a visa will be issued, if:

1) a criminal proceeding upon request of the competent court is conducted against the person who requests issuing a passport or a visa;

2) the person who requests issuing a passport or a visa is sentenced to unconditional imprisonment until serving the sentence;

3) upon request of the Center for Social Work in relation to the oversee of the parental right and the issues related to custody, according to the Family Law;

4) a request is filed to conduct  infringement proceedings in accordance with Articles 44 and 45 of this law;

5) the nationality of the Republic of Macedonia of the person is expired or the person is not a national of the Republic of Macedonia;

6) the person is forcibly returned or expelled from another country for having violated that country’s regulations for entry and stay; and

7) the conditions prescribed in Articles 11 and 12 of this Law are not fulfilled.

If some of the reasons stated in paragraph 1 of this Article occurred after the passport or the visa have been issued, the passport will be revoked and the visa will be cancelled.

According to Article 38 of the Law, the competent court or body shall immediately inform the Ministry of Internal Affairs of any fact that is of consequence to annulment of the grounds for refusal of the request for passport or visa issuing.

The grounds for refusal of the request for passport or visa issuing laid down in Article 37 paragraph 1 line 1 of this Law will be considered annulled if the competent court or body does not renew the request after expiry of the dead-line of six months from the day of submission of the request to conduct misdemeanor proceedings.

The grounds for refusal of the request for passport or visa issuing laid down in Article 37 paragraph 1 line 6 of this Law will be considered annulled after expiry of one year from the day when the decision according to Article 39 of this Law has been taken.

In accordance with Article 39 of the Law, the decision for refusal of issuing a passport or a visa, i.e. the decision for revocation of passport or visa cancellation stipulates the reasons by which the body was guided during the decision making.

The Article 40 of the Law stipulates that the decision for refusal of the request for issuing a passport or a visa i.e. the decision for revocation of passport or visa cancellation can be appealed to the State Commission for Resolution of Second Instance Administrative Proceedings and Labor Relation Proceedings.

6. The provisions of the Constitution of the Republic of Macedonia (Article 27) and the provisions of the international human rights treaties stipulate that the right of the citizen to leave the territory of his/her country, i.e. the right to travel abroad is one of the fundamental human rights arising from the freedom of movement, which is in turn an integral part of the larger context of freedom of the person, namely the overall freedom of action of the person and its activities in all areas of life. The enjoyment of this right is considered a precondition for enjoyment of other rights and freedoms (for example, the right to asylum).

According to the above-mentioned provisions this right is not absolute, i.e. it can be restricted, but under strictly defined conditions. The enjoyment of the right to freedom of movement and the right to leave the territory of the Republic of Macedonia, pursuant to Article 27 paragraph 3 of the Constitution, can be restricted by Law only in cases when such a measure is necessary to protect the security of the Republic, to conduct criminal proceedings or to protect the public health.

Taking into consideration the content of the right to freedom of movement and the right to leave the country and its importance for enjoyment of the other rights and freedoms, it follows that the restrictions of the right to leave the country shall be strictly interpreted, in a sense not to threaten and deny the very essence of the right to freedom of movement. Or, as stated by the United Nations Human Rights Committee in its General Comment no.27 – Freedom of movement:

“1. Liberty of movement is an indispensable condition for the free development of a person.”

2. The permissible limitations which may be imposed on the rights protected under Article 12 (of the Covenant) must not deny (nullify) the principle of liberty of movement …

13. In adopting laws providing for restrictions permitted by Article 12, paragraph 3, States should always be guided by the principle that the restrictions must not impair the essence of the right;”

Hence, any measure imposing a restriction on the right shall be assessed not only from a point of view of its legality, i.e. regulation by law, but also from the aspect of its necessity and proportionality.

This question was also addressed by the European Court for Human Rights when on 27 November 2012 it has rendered the judgment in the case Stamose v. Bulgaria (App.No.29713/05) in which the Court holds that there has been violation of Article 2 of the Protocol No.4 to the Convention with the explanation that it can never be considered as a proportionate measure to automatically prevent a person from traveling to any foreign country for having violated immigration rules of particular country. According to the Court in Strasbourg, a normal consequence of the breach of a country’s immigration laws would be for the person concerned to be removed from that country and be prohibited from re-entering its territory. But, it is disproportionate the person’s country of origin to multiply the measure by preventing the person from traveling to any other foreign country for a given period of time.

The argument of the Bulgarian authorities that such prohibited measures were necessary because of the principle of international reciprocity and from practical reasons in order to support the other countries in the application of their immigration rules and policies was not sufficiently convincing for the Court in Strasbourg. Although the Court confirmed that the Bulgarian authorities adopt the amendments of the law as part of the measures to eliminate the concerns of the EU Member States from illegal immigration from Bulgaria, that was not sufficient to avoid violation of the right to leave one’s country. The Court considered that to prevent a person to leave one’s country for violation of the immigration laws of another country can be considered justified in exceptional cases, but to automatically prescribe such a measure without taking into account the situation of the person is not a necessity in a democratic society.

In accordance with the above, the effective exercise of the right to leave one’s country supposes the person to hold a valid passport or a visa, so the act of non-issuing a passport or its revocation, i.e. the non-issuing of visa represents indisputably a restriction of the right and an effective prevention for the person to leave his/her home country.

The Government of the Republic of Macedonia in its response says that the disputed legal provisions arise from the need to disable, i.e. to decrease the risk of non-respect and concrete abuses of the legal provisions by persons who violate the system for entry and stay in foreign countries against the international agreements, and that such actions have significant effects on the international reputation of the State.

Nevertheless, the constitutional provision under Article 27 paragraph 3 allows for restriction of the right to leave the country only under circumstances such as are the security of the Republic, conduct of criminal proceedings or protection of public health, however preservation of the country’s reputation and protection of the system for entry and stay in other countries (e.g. regulations for entry and stay in the European Union Member States Parties in the Schengen Area) in the Court’s opinion, do not fall under any of the grounds listed under Article 27 paragraph 3 of the Constitution.

The indicated measure is not justifiable by referring to the national security for the reason that it is not a question of the right to entry in the country, but the right of the person to leave one’s country, so logically the question in what way the State protects its own security by undertaking such a measure is posed, if it is clear that the measure is in function of protection of the security of another state, i.e. states through protection of the regulations for entry and stay of the other state. The introduction of such a measure actually means that our state exercises sovereign rights of another state, which brings us to the question how the assessment was made for determining if and in what way the security of the other state or states was threatened.

It is also clear that this measure is not justifiable by referring to the other two grounds – conduct of criminal proceedings and protection of public health.

The Court also concluded that the measure by itself is disproportionate and that it imposes excessive restriction on the freedom of movement of the person, namely on the right to travel abroad. This is for the reason that the persons affected by the disputed measure have been already deported i.e. forcibly returned in the Republic of Macedonia, which means that those persons already bear certain consequences, so it would be logical to ban re-entry into the state or states whose regulations for entry and stay they have violated, but by the those states, and not by their own state. Instead, with the disputed measure which comprises revocation of the person’s passport for a period of one year, these persons are entirely deprived of their right to leave their country and to travel to another foreign country, and that measure is applied by their own country. To automatically impose a ban on these persons to travel anywhere abroad is precisely what makes the measure disputable in relation to the principle of proportionality, as well as in relation to the principle of the rule of law.

In the Court’s opinion, a state can restrict the right i.e. the freedom to leave one’s country to its own national who holds a valid travel document, under serious and exceptional circumstances, such as are those listed under Article 27 of the Constitution. The disputed limitation, although envisaged by the Law, is excessive and disproportionate and is not considered as part of the permissible restrictions of this right under Article 27 paragraph 3 of the Constitution of the Republic of Macedonia. For this reasons, the Court holds that the disputed provisions under Article 37 paragraph 1 line 6 and Article 38 paragraph 4 of the Law on Travel Documents of Citizens of the Republic of Macedonia are contrary to Article 27 of the Constitution of the Republic of Macedonia.

7. On the basis of the above-mentioned, the Court has decided as in Article 1 of this Decision.

8. The Court has taken this decision composed of the President of the Court Elena Gosheva and Judges PhD. Natasha Gaber-Damjanovska, Ismail Darlishta, Nikola Ivanovski, Jovan Josifovski, Vangelina Mardukova and PhD. Gzime Starova.

U.br. 189/2012
25 June 2014
S  k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Elena Gosheva

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