ECtHR - Ljatifi v. The Former Yugoslav Republic of Macedonia (Application nos. 16870/11, 16874/11 and 16879/11), 17 May 2018
| Country of applicant: | Serbia |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 17-05-2018 |
| Citation: | Ljatifi v. The Former Yugoslav Republic of Macedonia (Application nos. 16870/11, 16874/11 and 16879/11), 17 May 2018 |
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
Headnote:
The Court ruled that, even where national security was at stake, deportation measures should be subject to some form of adversarial proceedings before an independent authority or court. In this case, the Macedonian courts failed to scrutinise whether an expulsion order was issued on genuine national security grounds, violating Article 1 of Protocol No. 7 to the Convention.
Facts:
The applicant, a Serbian national, fled Kosovo in 1999 aged 8. She was granted asylum in 2005 and lawfully resided in FYROM for almost twenty years.
In 2014, the Ministry of Interior revoked her asylum status holding that she was “a risk to [national] security” and ordered her to leave the country within twenty days of the decision. She unsuccessfully appealed against this decision before the Administrative and Higher Administrative Courts.
The applicant alleged that she had not been provided with the minimum procedural safeguards in proceedings in which she had been required to leave FYROM. She also complained that the subsequent judicial review proceedings had not been an effective remedy in that respect.
Decision & reasoning:
First, the Court considered, contrary to the government’s argument, that the order to leave the state voluntarily is to be regarded as a measure of expulsion taken against the applicant, even if not aimed at forcibly removing her.
The ECtHR reiterated, with reference to its judgment in C.G. and others v. Bulgaria, that even where national security is at stake the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights be subject to some form of adversarial proceedings. These should be before an independent authority or a court competent to effectively scrutinise the reasons for them, and review the relevant evidence, if need be with appropriate procedural limitations on the use of classified information. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority or court must be able to react in cases where the invocation of this concept has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary.
In this case, the ECtHR concluded that the administrative courts had confined themselves to a purely formal examination of the expulsion order and wrongly accepted the general statement that the applicant was a risk to national security, without further details. The courts only added that the Ministry had reached their decision on the basis of a classified document obtained from the Intelligence Agency, which was not available during the proceedings before the Ministry or the courts. The courts did not explain why the classified document had to remain confidential, or the extent of the review they had carried out. The courts had thus failed to subject the executive’s assertion that the applicant posed a risk to national security to any meaningful scrutiny.
Lacking even an outline of the facts, which had served as a basis for the executive’s assessment, the applicant was not able to present her case adequately in the judicial review proceedings.
Therefore, the ECtHR found that there has been a violation of paragraph 1(a) and (b) of Article 1 of Protocol No. 7 to the Convention.
Outcome:
The Court found that there has been a violation of paragraph 1(a) and (b) of Article 1 of Protocol No. 7 to the Convention.
Cited National Legislation:
| Cited National Legislation |
| FYROM - Asylum and Subsidiary Protection Act: Section 6(2) |
| section 60 |
| FYROM - Aliens Act: Section 49 |
Other sources:
Radomilja and Others v. Croatia [GC], no. 37685/10, 20 March 2018
Söderman v. Sweden [GC], no. 5786/08, ECHR 2013
Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010
Lupsa v. Romania, no. 10337/04, ECHR 2006-VII
Saeed v. Denmark (dec.), no. 53/12, 24 June 2014
Vučković and Others v. Serbia ((preliminary objection) [GC] nos. 17153/11 and 29 others, §§ 70-77, 25 March 2014
C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008
Regner v. the Czech Republic [GC], no. 35289/11, ECHR 2017 (extracts)
Kaya v. Romania, no. 33970/05, 12 October 2006
Editions Plon v. France, no. 58148/00, ECHR 2004-IV
Belchev v. Bulgaria, no. 39270/98, 8 April 2004
Hajnal v. Serbia, no. 36937/06, 19 June 2012
Explanatory Report to Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 22 November 1984