Limitation of the Freedom of Movement without a Judicial Decision

In April 2018, the Assembly of North Macedonia adopted the Law on International and Temporary Protection. This law regulates the conditions and procedures for obtaining the right to international protection (asylum), as well as the cessation, revocation, and annulment of the right to asylum for foreigners or stateless persons, the rights and duties of asylum seekers, and persons granted asylum in the Republic of North Macedonia. Chapter 5 (Legal Status), Part 1 of the Law addresses the procedure for restricting the freedom of movement of asylum seekers.

According to Article 63, in exceptional cases, the freedom of movement of an asylum seeker can be limited if other less coercive alternative measures, in accordance with national legislation (such as confiscation of identification documents, regular reporting), cannot be effectively applied.

According to Article 65 the Ministry of Interior is the authority responsible for deciding on the limitation of the freedom of movement. The Ministry of Interior issues a decision to impose a measure for limitating the movement of the asylum seeker and specifying the duration of the measure. The asylum seeker has the right to file a lawsuit against the decision with the competent court within five days from the date of receiving the decision. The lawsuit does not suspend the execution of the decision. The procedure before the competent court is expedited.


Initiative to the Constitutional Court


The Macedonian Young Lawyers Association submitted an initiative to the Constitutional Court to challenge the provisions of the Law on International and Temporary Protection, specifically Articles 63 and 65. The contested provisions, as explained in the initiative, are in conflict with the constitutional order of North Macedonia, particularly with Article 12, which protects the freedom of individuals, as well as with Article 8, paragraphs 1 and 3, which recognize the fundamental freedoms and rights of individuals and citizens as provided by international law and established in the Constitution, and the rule of law. Violations of the Constitution are alleged due to:

Granting authority to the Ministry of Internal Affairs, as an organ of state administration, to decide on limitating the freedom of movement of asylum seekers (regulated by Article 65 of the Law) instead of exclusively by the judiciary, thus violating Article 12, paragraph 2 of the Constitution of North Macedonia, which states, 'No one shall be deprived of freedom except by a decision of a court and in cases and in the manner prescribed by law.'
Disregarding the principles of the European Court of Human Rights used to interpret the European Convention on Human Rights, an international treaty ratified in accordance with the Constitution of North Macedonia, thereby violating Article 118 of the Constitution of North Macedonia.
The imprecise regulation of cases in which freedom of movement of asylum seekers may be limitated (Article 63, paragraph 1 of the Law), thus undermining the fundamental value of the constitutional order of North Macedonia: the rule of law as provided in Article 8, paragraph 3.

The granting of authority to the Ministry of Interior to decide on restricting the freedom of movement of asylum seekers, as stipulated in Article 65 of the Law, constitutes a violation of Article 12, paragraph 4, of the Constitution of North Macedonia.

Article 12, paragraph 2 of the Constitution, which protects the freedom of individuals, provides that 'No one shall be deprived of freedom except by a decision of a court and in cases and in the manner prescribed by law.' Paragraph 4 of this article states, 'A person deprived of liberty must be brought before a court without delay and, at the latest, within 24 hours of the deprivation of liberty, which shall decide without delay on the lawfulness of the deprivation of liberty.'

The term limitation of the freedom of movement,' as used in the contested provisions of the Law, de facto constitutes deprivation of liberty within the meaning of Article 12 of the Constitution of North Macedonia and, therefore, must meet the guarantees established by this article. Although the term 'restriction of freedom of movement' is used, considering the principles, the nature of the measures, the manner of their implementation, and their duration, the legislator essentially 'deprives of liberty' asylum seekers within the meaning of Article 12 of the Constitution of the Republic of North Macedonia. According to S. Shkaric, 'The right to freedom means the right of individuals to move freely, act freely, and behave freely.'

The European Court of Human Rights (ECtHR), in applying the European Convention on Human Rights, an international treaty ratified in North Macedonia, has developed a judicial practice that establishes criteria for assessing whether a person has been deprived of liberty or not. According to this court, the starting point must be the specific situation, taking into account a wide range of criteria, such as the type, duration, consequences, and manner of implementing the measure.

Furthermore, the initiative states that a judicial decision was mandatory in cases of deprivation of liberty, a fact confirmed by previous decisions of the Constitutional Court, which, when deciding on an initiative to review constitutionality in case U. no. 63/2008-1, determined that departing from the content of Article 12 and Amendment III of the Constitution, it followed that the Constitution proclaims the inviolability of individual freedom as a fundamental right while also establishing the basic conditions and manner of restricting it. Thus, it established that no one's freedom could be restricted except by a decision of the court and in cases and in the manner prescribed by law. Accordingly, any restriction of freedom had to be carried out with strict adherence to the legal conditions and procedures prescribed by law, excluding any arbitrariness by any authority. A special guarantee was the jurisdiction of the court as an independent and autonomous body that decides on its restriction."

DECISION OF THE CONSTITUTIONAL COURT

The Constitutional Court of the Republic of North Macedonia, at its session held on July 10, 2019, has made a DECISION that it will not initiate a procedure for assessing the constitutionality of Articles 63 and 65 of the Law on International and Temporary Protection ("Official Gazette of the Republic of North Macedonia" No. 64/18).
The initiator of the proposal questions the constitutionality of Articles 63 and 65 of the Law on International and Temporary Protection ("Official Gazette of the Republic of North Macedonia" No. 64/2018), arguing that the provisions of Article 12 paragraphs 1, 2, and 4, as well as Article 8 paragraphs 1 and 3 and Article 118 of the Constitution of the Republic of North Macedonia are being violated. The claims in the proposal relate to a collision between Article 63 and 65 of the Law on International and Temporary Protection ("Official Gazette of the Republic of North Macedonia" No. 64/2018) with the mentioned constitutional provisions. The Court assessed these claims as unfounded for the following reasons:
One of the fundamental requirements for the integration of the Republic of North Macedonia into the European Union is harmonization of national legislation with EU law. In this context, the Court found that the new Law on International and Temporary Protection has achieved a high level of alignment with the European acquis, i.e., asylum and international protection legislation, as confirmed in the European Union's Progress Report for the Republic of North Macedonia for the year 2018.
The Law on International and Temporary Protection partially aligns with European directives in the field of asylum and international protection. Regarding the claims made by the initiator that Article 63 violates Article 12 and Article 8 paragraphs 1 and 3, i.e., the basic human rights and freedoms recognized by international law and established by the Constitution, the Court found them to be unfounded because Article 12 paragraph 2 of the Constitution of the Republic of North Macedonia explicitly states: "No one's freedom may be restricted except by a decision of the court and in cases and procedures determined by law," which means that the restriction of freedom can only occur in cases and procedures determined by law, as respected in the case of the disputed provisions of the Law on International and Temporary Protection.
Moreover, the Law on International and Temporary Protection clearly designates the Ministry of Interior as the authority that can impose this measure because the procedure is administrative and concerns cases that are at the first-instance decision stage. The Law also normatively establishes the possibility of filing a lawsuit before an administrative court, thus respecting the constitutionally guaranteed right to legal remedy or an effective legal remedy.
Additionally, when compared internationally, the Court found that in the national legislations regulating asylum, or international protection in countries in the region (Republic of Croatia and Republic of Slovenia, which are EU member states), and in the Law on International Protection of Montenegro, which has initiated negotiations for EU membership, the measure of restricting the freedom of movement of asylum seekers is identically regulated.
Taking all of the above into account, the Court determined that the disputed provisions of Articles 63 and 65 of the Law on International and Temporary Protection ("Official Gazette of the Republic of North Macedonia" No. 64/2018) are in accordance with Article 12 paragraphs 1, 2, and 4, Article 8 paragraphs 1 and 3, and Article 118 of the Constitution.

ANALYSIS

The initiators of the initiative before the Constitutional Court believe that the provisions of the Law on International and Temporary Protection (LITP) are unconstitutional because they allow the Minister of Interior, through their decision, to restrict the freedom of asylum seekers and treat them as detained persons. According to them, only a court, and not an administrative authority through an administrative act, should be able to limit the freedom. The law should not limit the freedom but should only prescribe the conditions under which such limitation can occur.

Contrary to this, the Constitutional Court believes that Article 12, paragraph 2 of the Constitution of the Republic of North Macedonia should not be interpreted cumulatively. According to the Constitutional Court, this can be alternatively assessed. A citizen can be deprived of freedom when such a case is provided for by law and when there is a court decision for their deprivation of freedom.
As Professor Shkaric will point out in his legal opinion, this clash radicalizes the question of human rights: whether they are constitutional or statutory matters.[1]

When reading the reasoning behind the Constitutional Court's decision, one gets the impression that the Constitutional Judges are attempting to provide more non-legal than legal facts in their argumentation. They mention the European Union's request for harmonization of Macedonian legislation with European acquis, with European directives. The Court also refers to comparative legislations, such as Slovenia, Croatia, and Montenegro, which, according to the Court, had identical formulations in their laws. The Court uses information obtained from the initiator of the law, such as, for example, "the Law on International and Temporary Protection was submitted for opinion to the European Commission in Brussels, as well as through the UNHCR Office in Skopje to the UNHCR headquarters in Geneva, and their remarks were appropriately analyzed and incorporated."

Contrary to this, the Court does not engage in an argumentation about why it deviates from the established practice where the Constitutional Court, in deciding on the initiative to assess constitutionality in the case U.no. 63/2008-1, decided that the court's decision was mandatory in cases of deprivation of freedom.[2]

The contested provision provides for judicial protection of freedom of movement when it is restricted by the decision of the Ministry of Interior. The asylum seeker has the right to file a lawsuit against the first-instance decision with the Administrative Court. However, the judicial protection through the Administrative Court in such cases is quasi-judicial, as the Administrative Court primarily assesses the legality of the decision. And that decision is lawful every time because it is made based on the law (formal legality).

How legal protection is carried out in cases of restriction of freedom of movement can be seen from the judgment of the Administrative Court U-6.no.193/2019. The foreigner H.A. applied for asylum in the Republic of North Macedonia on March 22, 2019. On April 3, 2019, the Ministry of Interior issued a decision to restrict freedom of movement for a period of three months. Within the statutory deadline of 5 days according to the Law on International and Temporary Protection, a lawsuit was filed against the decision of the Ministry of Interior. Although, according to the law, the procedure before the Administrative Court is urgent, given that it concerns the restriction of freedom of movement, the Administrative Court found, on October 17, 2019 (6 months after filing the lawsuit), that the plaintiff's lawsuit was unfounded.

The Administrative Court did not consider the urgency of the procedure itself. If the asylum seeker is waiting for "justice" from the court, they will have to spend months in detention solely based on a decision of an administrative body. This is in complete contrast to the practice of the ECtHR, as well as the comparative experiences in some EU countries that the Constitutional Court wants to compare. In these countries, at the very least, the courts automatically review decisions of administrative authorities in cases of restriction of freedom of movement.

Freedom is the highest law. Its restriction must be approached carefully because it is a universally human value, belonging to all living human beings, including asylum seekers.

The decision not to initiate a procedure for assessing the constitutionality of the mentioned articles can be considered one of the weakest acts adopted in the history of constitutional justice in the Republic of North Macedonia (1963-2018).[3]











[1] Professor Svetomir Shkaric, Young Lawyesr against the Contstituional court, avaliable here
[2] The Initiative also mentions the Decision of the Constitutional Court of April 8, 2009, which repeals paragraph 1 and paragraph 6 of Article 345 of the Law on Criminal Procedure. The two paragraphs of the mentioned article of the Law on Criminal Procedure have been repealed due to the fact that with them the legislator reserved for himself the right to decide (ex legem) on the detention of persons sentenced to a sentence of five or more years in prison, and not for the detention to be decided by the court . Detention can only be decided by the court, not the Parliament as a legislative body, through an imperative norm that no one can dispute. Through the aforementioned decision, the Constitutional Court makes a clear distinction between the judicial and legislative authorities, not allowing the latter to decide on issues of a criminal nature.
[3] Professor Svetomir Shkaric, Young Lawyesr against the Contstituional court, avaliable here