THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18670/03 by Dzavit BERISHA and Baljie HALJITI against “ the f ormer Yugoslav Republic of Macedonia ”

The European Court of Human Rights (Third Section), sitting on 16 June 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Mr David Thór Björgvinsson, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 17 June 2003 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicants, Dzavit Berisha and Baljie Haljiti, are nationals of Serbia and Montenegro and are of Egyptian ethnic origin. The first applicant was born in 1977 and the second in 1980, both in Kosovo province . They are presumed to be living in Hungary .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

In March 1999 the applicants married . A fter the NATO bombing of the Federal Republic of Yugoslavia they left the city of Obilic and moved to the village of Mazgit .

T hey subsequently left Mazgit and moved back to Obilic , where they were allegedly threatened and harassed by Albanians on a daily basis. In addition , Ms Haljiti allegedly received threats of rape . On 28 June 1999 members of the Kosovo Liberation Army ( “ the KLA”) , together with some villagers, forced the applicants and their entire family to leave their house and the village. For almost three months they moved from one camp to another and were allegedly subjected to frequent harassment by the Albanian population from the nearby villages.

On 25 September 1999 they fled Kosovo and entered “ the f ormer Yugoslav Republic of Macedonia ” , where they obtained humanitarian protection. Owing to the allegedly unsuitable living conditions in the campsite, they left the country voluntarily .

On 4 April 2001 Mr Berisha was hired by the KFOR administration in Kosovo as an interpreter . H is wife moved to her parents ' house in Lipljan, Kosovo , five months later (their house in Obilic having been destroyed and occupied by Albanians in the meantime ). While living in Lipljan, they were allegedly subjected to frequent verbal assaults , threatened with physical violence and had their house stoned. Eve n at the Bondsteel military camp , Mr Beris h a allegedly suffered constant discrimination by his Albanian colleagues, owing to his part in the arrest of several KLA members and his involvement in the human rights movement and , in particular, the Roma rights movement. On 1 March 2002 Mr Berisha lost his job, allegedly on racial grounds.

On 1 June 2002 the applicants re- entered “ the f ormer Yugoslav Republic of Macedonia ” and on 19 June 2002 they applied for asylum.

On 2 July 2002 the Ministry of the Interior dismissed their application on the ground that the fear of persecution was not well-founded , as the applicants had based their fears on isolated incidents and on assumptions . On 27 August 2002 the Government Appeal Commission upheld the decision. At the applicants ' request the Ministry of the Interior suspended execution of the expulsion order on 30 September 2002 pending the outcome of the appeal before the Supreme Court.

On 27 March 2003 the Supreme Court dismissed the applicants ' appeal on points of law as ill-founded. The court , inter alia , refused to grant their request for asylum , finding that their fear of persecution was based solely on their general feeling of insecurity due to their ethnic origin. The decision was served on the applicants ' lawyer on 29 May 2003 . Afterwards, the applicants were informed that they had to leave the country within 30 days or face forced expulsio n. However, they stayed in “ the f ormer Yugoslav Republic of Macedonia ” .

On 25 June 2003 the European Court of Human Rights decided not to apply Rule 39 of the Rules of Court .

Since a new Law on asylum and temporary protection had entered into force, the applicants submitted a fresh request for asylum based on alleged new facts (Ms Haljiti ' s health had deteriorated : she had suffered a miscarriage and had frequent stomach pains ). The precise date of the new asylum request is not known ( the applicants allege d that the request had been sent on 14 August 2003 , but the stamp on the letter sent by fax gave the date as 8 October 2003 ).

On 15 September 2003 , at around midnight , the applicants were stopped by the police while attempting to enter Greece illegally. They were detained in the police station and were allegedly prevented from calling anyone, including thei r lawyer. The next day, the Bitola Basic Court found them guilty of committing minor offences in breach of the Law on border crossing and movement within the border area ( Закон за премин на државните граници и движење во граничниот појас ) and the Law on the movement s and residence of foreigners ( Закон за движење и престој на странци ) . It fined them and banned them from entering the country for two years. According to the decision, the applicants had w aived their right to appeal. They were expelled to Serbia and Montenegro , from where they wen t to Lipljan, Kosovo.

On 1 October 2003 , following repeated acts of harassment (shouting, house stoning and verbal threats) , they fled Kosovo again and on 17 October 2003 applied for asylum in Hungary . On 17 December 2003 the Hungarian national authorities granted their request for asylum on account of the unstable and insecure situation in Kosovo.

B. Relevant domestic law

The provisions and relevant laws cited below were referred to by the Bitola Basic Court in its decision adopted in the proceedings against the applicants relating to the minor offence s .

1. Law on minor offences ( Закон за прекршоци)

Application of the provisions of the Criminal Code and the Law on criminal procedure

Section 2

“ (1) The provisions of the general part of the Criminal Code shall apply to liability for minor offences and to the imposition and enforcement of sanctions for such offences , unless otherwise stipulated by law.

(2) The provisions of the Law on criminal procedure shall apply to proceedings concerning minor offences, unless otherwise stipulated by law.”

I. Sanctions for minor offences

1. Penalties

Types of penalties

Section 11

“ (1) Individuals found guilty of minor offences shall be fined or imprisoned.

... ”

Conversion of fine s

Section 15

“ (1) I f the person convicted does not pay the fine in good time , the court shall execute it s decision by converting the fine into a prison sentence, on the basis of one day ' s imprisonment for every 1 , 000 denars (MKD); the prison sentence may not exceed 60 days.

(2) I f a person fined more than MKD 2 , 000 pay s only part of the fine , the remaining part shall be converted into a prison sentence . ”

2 Law on crossing the border and movement within the border area ( З а кон за премин на државната граница и движење во граничниот појас)

Section 7

“ The state border can be crossed only at designated crossing points, with valid travel papers and during the designated times .”

Section 66

“ A fine of two or two and a half months ' salary, or a prison sentence of up to 30 days , shall be imposed :

1) o n a ny person crossing or attempting to cross the border outside the designated crossing points o r crossing or attempting to cross the border without valid travel papers ( Section 7(1) ) .

...”

3. Law on the movement s and residence of foreigners (Закон за движење и престој на странци)

Section 85

“ Foreign citizen s shall be fined an amount between MKD 8,000 and MKD 20,000 for the following minor offences :

1. If their stay in the country extends beyond the period allowed or covered by the validity of their passport, visa, tourist pass or period of residence under an International Covenant or temporary residence permit, or if they fail to submit in good time a n application to stay ( Section 20) ... ”

4. Criminal Code (Кривичен Законик)

The aim of sanctions

Article 32

“ In addition to the administration of justice, the aim of sanctions shall be :

( 1) to prevent the perpetrator c ommit ting further criminal offences and ensure his or her reintegration into society and

( 2) to deter others from commit t ing criminal offences . ”

General rules on the calculation of penalties

Article 39

“(1) The court shall calculate the penalty imposed on the perpetrator of a criminal offence within the framework laid down by law for that offence, taking into consideration the criminal liability of the perpetrator, the seriousness of the offence and the aim of the sanctions imposed .

... ”

COMPLAINTS

1. The applicants complain ed under Article 3 of the Convention that after being expelled they had been subjected to inhuman and degrading treatment because of their ethnic origin and Mr Berisha ' s active involvement in Roma human rights organisations . They drew attention to the widespread violence and discrimination against Roma/ Gypsies and the continued lack of an adequate response from the international authorities administering Kosovo.

2. The applicants complained that they had been victims of collective expulsion contrary to Article 4 of Protocol No. 4, since the authorities had issued a single decision for both without a reasonable and objective examination of the particular circumstances of each.

3. They also relied on Article 13 of the Convention , alleging that the asylum procedure had been ineffective, as they had not been interviewed in the appeal proceedings , the same official had participated in the first and second- instance decision- making bodies , and the national authorities had not provide d reasons for their decisions , examine d the evidence submitted by the applicants or assessed the situation at the time in Kosovo.

4. With regard to the proceedings relating to the minor offences the applicants, in a letter lodged at a later date , allege d that their right of access to a court under Article 6 § 1 of the Convention had been violated ( owing to the court ' s failure to give reasons for its decision and the lack of information about their procedural rights ) . They also complained under Article 6 § 3 (b), (c) and (e) that they had not had adequate time and facilities to prepare their defence , had not been allowed legal assistance or legal aid and had not been provided with an interpreter during the trial.

THE LAW

1 . The applicants complain ed under Article 3 of the Convention that they had been subjected to persecution and ill-treatment after bei ng denied asylum status in “ the f ormer Yugoslav Republic of Macedonia ” and being expelled to Serbia and Montenegro . They base d their allegations on Mr Berisha ' s involvement in the Roma human rights movement , the particular vulnerability of the Roma population in Kosovo province and the lack of adequate action by the international community to prevent such a situation.

Article 3 provides :

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court observes at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. A deportation or expulsion decision may, however, give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of the State, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she is to be expelled ( see Vilvarajah and Others v. the United Kingdom , judgment of 30 October 1991, Series A no. 215, p. 34, § 103). A mere possibility of ill-treatment on account of the unsettled general situation in a country is in itself insufficient to give rise to a breach of Article 3 of the Convention (ibid., p. 37, § 111).

Moreover, while it is true that Article 3 has been more commonly applied by the Court in contexts where the risk to the individual of being subjected to ill-treatment emanates from intentionally inflicted acts by public authorities or non-State bodies in the receiving country, the Court has, in the light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not, therefore, prevented from scrutinising an applicant ' s claim under Article 3 where the risk that he runs of inhuman or degrading treatment in the receiving country is due to factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances of the case to rigorous scrutiny, especially the applicant ' s personal situation in the expelling State (see , among other authorities, Bensaid v. the United Kingdom , no. 44599/98, §§ 32 and 34, ECHR 2001-I , and Arcila Henao v. the Netherlands (de c.), no. 13669/03, 24 June 2003 ).

In the instant case, the applicants were deported when the expulsion order became final and enforceable . However, they have not shown that at the time of their expulsion in September 2003 they faced a real risk of ill-treatment of the severity contemplated in Article 3. They failed to substantiate their allegations that they were in a worse situation than other members of the Roma community in Kosovo or that the situation in general at that time was so severe as to place them at real and imminent risk . The fact that they refer to incidents of shouting, house stoning and verbal threats as occurring during their stay in the province after the ir expulsion does not substantiate their complaints in retrospect . The decision of the Hungarian authorities in December 2003 based on the situation existing at th e time does not alter that conclusion.

I t follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2 . The applicants complain ed under Article 4 of Protocol No. 4 that they had been subjected to collective expulsion , since the authorities had issued a single decision for both of them without a reasonable and objective examination of the particular circumstances of each. Article 4 of Protocol No. 4 provides :

“Collective expulsion of aliens is prohibited.”

The Court finds that collective expulsion is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group. Moreover, the fact that a number of aliens receive similar decisions does not lead to the conclusion that there is a collective expulsion when each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see A. and Others v. the Netherlands , no. 14209/88 , Commission decision of 16 December 1988, D ecisions and R eports 59, p. 274).

In the instant case, the fact that the national authorities issued a single decision for both the applicants, as spouses, was a consequence of their own conduct. The applicants arrived in the respondent S tate together , lodged their asylum request jointly on the same grounds , produced the same evidence t o support their allegations and submitted joint appeals before the Government Appeal Commission and the Supreme Court . Hence, the authorities evaluated the risk s associated with expulsion for both of them jointly.

In the above circumstances the Court considers that the applicants ' deportation does not disclose any appearance of a collective expulsion within the meaning o f Article 4 of Protocol No. 4.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3 . In relation to the provisions cited above , t he applicants complained under Article 13 of the Convention that they had not had an effective remedy in respect of the ir threatened expulsion. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court ' s case-law, this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right ( see, among other authorities, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the substantive complaints are manifestly ill-founded. For similar reasons, the applicants did not have an “arguable claim” , and Article 13 is therefore inapplicable to their case.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

4. The applicants complain under Article 6 §§ 1 and 3 (b), (c) and (e) of the Convention about the unfairness of the proceedings concerning the minor offences . Article 6, in its relevant parts , provides :

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fai r ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, t he Court unanimously

Decides to adjourn the examination of the applicants ' complaint s under Article 6 of the Convention concernin g the alleged unfairness of the proceedings relating to the minor offences ;

Declares the remainder of the application inadmissible.

Mark Villiger Boštjan M . Zupančič Deputy Registrar President