Dželadin v North Macedonia and Two Other Cases (third-party intervention, 2019)
13 December 2019
Facts
These three cases were brought by Romani people (who are called “the applicants” in the proceedings before the European Court). They are citizens of North Macedonia who were stopped by border guards from leaving the country when they were trying to travel abroad. Two of the cases involved people stopped from leaving the country at the land border with Serbia and one involved someone stopped from boarding a plane at the airport. The applicants submitted material from various sources showing that Roma were being systematically prevented from leaving the country.
The ERRC’s Third-Party Intervention
The ERRC was not representing the applicants in the case. We asked the European Court if we could submit a “third-party intervention”, which means that we make written comments designed to help the Court to decide the case correctly. The European Court accepted our request.
In our intervention, we set out the extensive evidence that Macedonian border guards have been racially profiling Macedonian citizens of Roma ethnic origin and stopping many of them from leaving the country. That evidence includes: the ERRC’s own non-exhaustive data collection based on interviews with people affected, covering 422 Roma stopped from leaving the country; a situation-testing exercise we carried out in December 2013 and which led to litigation that was still ongoing; an admission by the Interior Minister in late 2016 that the practice had been taking place; a power-point presentation delivered by a Ministry of Interior official to international colleagues in Strasbourg in 2014 describing the “profile” of the typical returned failed asylum seeker (including that such a person is most likely to be Romani) and saying that people who fit this profile are stopped at the border when trying to leave the country; documents from the European Union identifying most asylum seekers from Macedonia as Roma and urging the Macedonian government to take action, which we believed amounted to a clear indication to engage in racial profiling; and conclusions from Council of Europe bodies, UN bodies, and the national Ombudsman identifying and condemning this practice of racial profiling. We gave an overview of cases that the ERRC has supported in the domestic courts on the issue, showing inconsistencies and misunderstandings by national judges. The domestic cases have taken divergent approaches, with some courts finding no violations, some finding violations only of the constitutional right to leave the country, and some finding discrimination in the individual case but without identifying a larger pattern. We went on to say that the time had come for the Court to use the term “antigypsyism” in its case law. We set out widely accepted definitions of the terms “antigypsyism” and “institutional racism” and urged the Court to use the term “institutional antigypsyism” to describe the practice of racial profiling of Roma at the border in Macedonia. We identified three consequences of the existence of institutional antigypsyism for the Court’s consideration of these complaints: the burden of proof was on the Respondent Government to show that there was no discriminatory practice; the Court was not required to examine the individual cases of applicants who suffered the same discriminatory practice; and it was appropriate for the Court to make an indication of the general measures that must be taken to put an end to the institutional antigypsyism that gave rise to this practice, including clear, written directives to border police, training, and measures for data collection.
The Court’s statement of facts can be found here.
The ERRC’s third-party intervention can be found here.
How the Cases Were Resolved
One of the cases was resolved when the Government of North Macedonia and the applicant agreed to a friendly settlement, which involved a payment of 2,500 EUR. The decision setting this out can be found here.
The same thing happened in the second case. The decision in that case can be found here.
In the third case, the Government and the applicant did not reach a friendly settlement. So the Government agreed to pay the applicant 2,250 EUR and admitted that “in the special circumstances of the present case, [North Macedonia] did not fulfil the requirements of the applicant’s rights”. This is what is called a “unilateral declaration”. The European Court accepted this unilateral declaration, which means that the case is now closed. The decision dealing with this can be found here.
