DŽELADIN v. NORTH MACEDONIA (European Court of Human Rights)

FIRST SECTION
DECISION
Application no. 43440/15
Dženifer DŽELADIN
against North Macedonia

The European Court of Human Rights (First Section), sitting on 3 September 2019 as a Committee composed of:

Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 25 August 2015,

Having regard to the declaration submitted by the respondent Government on 7 February 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1.  The applicant, Ms Dženifer Dželadin, is Macedonian/citizen of the Republic of North Macedonia, who was born in 1987 and lives in Skopje. She was represented before the Court by Mr Z Hadji-Zafirov, a lawyer practising in Skopje.

2.  The Government of North Macedonia (“the Government”) were represented by their Agent, Ms D. Djonova.

3.  The applicant complained under Article 2 of Protocol No. 4 and Article 1 of Protocol No.12 to the Convention about an incident in which the border police stopped her from leaving North Macedonia. She argued that the above incident violated her right to freedom of movement and amounted to discrimination on the basis of her Roma origin.

4.  The application had been communicated to the Government.

5.  Third-party comments were received from the non-governmental organisations Minority Rights Group International and the European Roma Rights Centre, which had been given leave by the President of the Section to intervene in the written procedure (Article 36 § 2 of the Convention).

THE LAW

6.  After the failure of attempts to reach a friendly settlement, by a letter of 7 February 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“… the Government would hereby like to express – by a way of unilateral declaration – its acknowledgement that in the special circumstances of the present case, did not fulfil the requirements of the applicant’s rights protected by Article 2 § 2 of Protocol No. 4 and Article 1 of Protocol No.12 to the Convention.

Consequently, the Government is prepared to pay to the applicant Dženifer Dželadin, a sum of 2,250 EUR (two thousand two hundred fifty euros). In its view, this amount would constitute adequate redress and sufficient compensation for the violation of Article 2 § 2 of Protocol No. 4 and Article 1 of Protocol No.12 to the Convention in relation to her right to freedom of movement and amounted to discrimination on the basis of her Roma origin. This sum is to cover any pecuniary and non-pecuniary damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable to the personal account of the applicant within three months from the date of the notification of the Court decision…

… In the light of the above and in accordance with Article 37 § 1 (c) of the Convention the Government, having in mind the terms of this declaration, would like to suggest that the circumstances of the present case allow the Court to reach the conclusion that for ‘any other reason’ it is no longer justified to continue the examination of the application. Moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the cases by virtue of that provision. Therefore, the Government invites the Court to strike the application out of its list of cases.”

7.  By a letter received by the Court’s Registry on 21 March 2018, the applicant indicated that she was not satisfied with the terms of the unilateral declaration, given the gravity of the violations alleged. Furthermore, she argued that the questions raised by the application were systematic ones that the Court needed to address by delivering a judgment.

8.  The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

9.  It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

10.  To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

11.  The Court has established in a number of cases its practice concerning complaints about the violation of the right of freedom of movement and the principle of non-discrimination (see, among others, Shioshvili and Others v. Russia, no. 19356/07, 20 December 2016; Timishev v. Russia, nos. 55762/00 and 55974/00, ECHR 2005‑XII;and Pilav v. Bosnia and Herzegovina, no. 41939/07, 9 June 2016).

12.  Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

13.  Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

14.  Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

15.  In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 2 of Protocol No. 4 and Article 1 of Protocol No.12 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 26 September 2019.

Renata Degener                                                       Tim Eicke
Deputy Registrar                                                      President

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