THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60855/00 by Redjep BERISHA and Others against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 10 March 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , Ms R. Jaeger , Mr E. Myjer , Mr David Thór Björgvinsson , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 12 September 2000 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Redjep and Djezide Berisha (husband and wife), Djafer , Shanie and Jashar Berisha (husband, wife and their son). They are Yugoslav national s of Romany origin, born in 1972, 1972, 1956, 1956 and 1982 respectively. They are represented before the Court by Mr Zoran Gavriloski and Mr Shaban Saliu , lawyers practising in Skopje .

A. The circumstances of the case

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

1. Redjep and Djezide Berisha ' s account of their situation in Kosovo

Redjep Berisha , his spouse Djezide and their four minor children had to leave Kosovo because they were constantly threatened and on few occasions attacked by the members of the Kosovo Liberation Army (KLA).

The most tragic event occurred on 13 June 1999 , when fifty to sixty armed people wearing the KLA uniform threatened them with death and ordered them to leave their house. One of these people took their baby who was only a few months old and said that he would throw it on the floor “just like the Albanian babies have been thrown”. Redjep Berisha ' s father and his brother were also beaten.

The following night, Redjep Berisha and his neighbours having organised night shifts to protect their families, Redjep Berisha was stabbed in the back while on guard. He was hit in the right shoulder and on his head and lost consciousness. Later a friend found him and he was transported by the KFOR to hospital in Prizren . The persons responsible for the attack were never found.

Fearing constant persecutions by the KLA, Redjep Berisha and his family left Kosovo and entered the Former Yugoslav Republic of Macedonia on 11 July 1999 .

The first two applicants are a married couple and the third applicant is their son. They used to live in Pristina , where they were constantly threatened by the KLA members.

In July 1999, some persons wearing the KLA uniform went into the applicants ' neighbourhood, entered their house, pointed their guns at them and threatened to kill them if they did not leave their house within an hour. They left their house immediately and escaped to Kosovo Polje where they were temporarily accommodated. They also met many Romanies who were allegedly beaten by the people wearing the KLA uniforms.

On 26 July 1999 , the applicants entered the Former Yugoslav Republic of Macedonia .

On their arrival, the Ministry of the Interior granted the applicants the status of Temporary Humanitarian Assisted Persons.

On 4 August 2000 , the applicants were arrested, as they tried to cross the Deve Bair border from the Former Yugoslav Republic of Macedonia to Bulgaria with forged passports. They were charged with with forgery of official documents (Section 378 of the Criminal Code). At 7 p.m. , the same day, the applicants appeared before a duty judge of the Kriva Palanka Basic Court . As the applicants stated that they did not have money to engage a lawyer, the judge appointed an ex officio lawyer. The Government stated that the applicants agreed to the hearing taking place at once as they did not wish to be detained any longer in custody.

The main hearing commenced at 8.30 p.m. , attended by the Deputy Public prosecutor, all the applicants, their counsel and three witnesses. The judge asked each applicant in turn if they understood Macedonian. They declared that they did and did not request any interpreter from Macedonian into Albanian (Roma). They all stated that they accepted their counsel.

During the proceedings, the applicants admitted that they had knowingly made use of forged passports with a view to leaving the FYR of Macedonia. The applicants were found guilty of having forged official documents and sentenced to a six months ' term of imprisonment suspended for two years. The court also ordered the expulsion of the applicants from the state territory as security measure. The judgment, drawn up on the spot, stated that the applicants, their ex officio lawyer and the Public Prosecutor all waived their respective right to appeal to the Appellate Court, whereby the judgment became final. The applicants were returned by the police to a refugee camp at Skopje .

On 7 August 2000 , the UNHCR local office requested the Ministry of Interior not to expel the applicants on the ground that they, being of Romany origin, risked to be ethnically persecuted in the country/place of their origin. Copies of this request were served on the first instance court, the Ministry of Justice and the Ombudsman.

In the meanwhile the applicants appointed another lawyer. On 8 August 2000 , they lodged an appeal on points of law with the Supreme Court on the grounds that the first instance court did not take into consideration the fact that they had been granted the status of Temporary Humanitarian Assisted Persons and that their lives would be at risk if they were deported to Kosovo. They also invoked the Convention on the Status of the Refugees and its Protocol of 1967, both of which have been ratified by the Former Yugoslav Republic of Macedonia in 1994 and Article 3 of the European Convention of Human Rights. The applicants further complained that there was no interpretation at the hearing into their own language. If they were to be considered as having waived their right to appeal, this was due to the fact that, as they did not know the official court language and some of them were illiterate, they did not understand that such waiver meant their expulsion from the Former Yugoslav Republic of Macedonia and their lawyer did not warn them about these consequences.

On 30 October 2000 , the ex officio lawyer applied to the Kriva Palanka Basic Court for a rehearing of the criminal case based on Article 392 of the Criminal Procedure Act, arguing that execution of the security measure of expulsion would lead to the applicants ' deaths. On 8 November 2000 , the Basic Court accepted the petition, annulling the previous judgment of 4 August 2000 and re-opening fresh proceedings.

On 17 July 2001 , Redjep and Djezide Berisha applied for voluntary repatriation to Kosovo. An emergency travel document was issued by the Embassy of the Federal Republic of Serbia. On 18 July 2001 the UNHCR informed the Ministry of the Interior that they had returned to Belgrade and returned their THAP certificates.

Hearings took place in the presence of the applicants ' current legal representative on 7 and 20 March, 25 April 2002 , 15 May 2002 , 7 June 2002 and 19 June 2002 .

On 19 June 2002 , the Kriva Palanka Basic Court found the applicants guilty and imposed a suspended sentence of six months ' imprisonment and ordered the forfeiture of the fake passports. The previous security measure of expulsion was withdrawn. The applicants, Djafer , Shanie and Jashar Berisha were present during the hearings. Redjep and Djezide Berisha remained in Kosovo.

In the absence of appeal by the prosecutor or the applicants, the judgment became final.

B. Relevant domestic law

1. Code of Criminal Procedure

Article 352 reads as follows:

“(1) An accused may waive his right to lodge an appeal only when the first instance judgment is served on him. Except if he has been sentenced to a term of imprisonment, the accused may waive his right to lodge an appeal before being served with the judgment provided the prosecution and the person who sustained damage and had the right to appeal on all points [set out in this code] have waived their right to lodge an appeal. The accused may withdraw the appeal at any time until the appellate court has delivered its decision...

(2) The accused and the person who sustained damage may waive their right to lodge an appeal at any time between the judgment being made public and the time-limit for entering an appeal.

(3) An accused who has waived his right to appeal may not retract such waiver and lodge an appeal.”

Article 392 provides as relevant:

“ (1) The criminal procedure concluded with an effective verdict may be repeated on behalf of the convicted, if ...

(4) new facts are presented or new evidence submitted which by themselves or in conjunction with previous facts or evidence are such as to cause the person to be released or to be convicted on lesser grounds. ”

Article 411 reads as follows:

“(1) An accused sentenced to a term of imprisonment may lodge an appeal on points of law on the grounds set out in the code.

(2) An appeal on points of law may be lodged within one month from the day the final decision was served on the accused.

(3) An accused who has not lodged an appeal may not lodge an appeal on points of law, unless having been acquitted, put on probation, reprimanded, or fined by the first-instance court, or unless he was sentenced to a term of imprisonment by the appellate court ... ”

An appeal on points of law does not suspend the enforcement of a final decision, unless the Supreme Court decides otherwise.

Section 33 provides that it is for the Minister of the Interior to decide when the expulsion order is to be enforced. An appeal can be lodged against the Minister ' s decision but it has no suspensive effect.

Section 39 provides that an alien shall not be expelled from the state territory if thereby his life will be put in jeopardy, because of his racial, religious or national affiliation, political beliefs or if he might be exposed to torture or inhuman treatment.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention that their lives would be put in jeopardy by armed groups if they were deported to Kosovo and under Article 3 that that they ran a real risk of being subjected to treatment contrary to this Article by such groups.

2. The applicants complained under Article 13 of the Convention that they were deprived of effective protection of their right to remain in the country.

3. In respect of the criminal proceedings, the applicants complained under Article 6 § 3(c) of the Convention that they were not provided with proper legal assistance, in particular, in that they waived their right to appeal against the first instance court ' s judgment as the ex officio lawyer failed to warn them about the consequences. They also complained under Article 6 § 3 (b) of the Convention that they did not have adequate time and facilities to prepare their defence as they were convicted on the same day of their arrest. They further complained under Article 6 § 3 (e) of the Convention that they were not provided with interpretation. In his observations in reply to the Government dated 23 January 2001 , the applicants ' representative invoked Article 6 § 3(a) as the case papers did not indicate that the applicants received the indictment which was an important procedural guarantee.

4. In his submissions of 9 November 2001 , the applicants ' representative referred to the recent re-hearing of the criminal case and complained that the authorities had not provided a fair trial within a reasonable time, the rehearing procedure having been subject to an unreasonably long delay.

THE LAW

1. The applicants complained under Articles 2 and 3 of the Convention that they were at risk of death and ill-treatment if expelled to Kosovo.

Article 2

“1. Everyone ' s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...”

Article 3

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

The Court notes that Redjep and Djezide Berisha have returned voluntarily to Belgrade and that their representative in his letter of 9 November 2001 only maintained their complaints under Article 6 of the Convention. As they have withdrawn their complaints under the above provisions, the Court considers that it is unnecessary to examine them further.

As concerns the other three applicants who remain in the FYR of Macedonia, it appears that the measure of expulsion was annulled by the decision of the Kriva Palanka Basic Court on 8 November 2000 and that following the rehearing of the criminal case no further expulsion measure was imposed. These applicants therefore continue to remain in the FYR of Macedonia under the status of Temporary Humanitarian Assisted Person and there is no outstanding order of expulsion against them. In the circumstances, the Court finds that they can no longer claim to be victims of the above-cited provisions of the Convention. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

2. The applicants complained that they had not had an effective remedy in respect of the threatened expulsion. Article 13 of the Convention 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 ( e.g. 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.

3. The applicants complained about various aspects of their trial on 4 August 2000 .

Article 6 provides as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

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

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(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.”

a) The parties ' submissions

The Government submitted that the applicant had been provided with a lawyer as required by Article 6 § 3(c) and denied that any issue arose from the quality of the representation, pointing out that the ex officio counsel lodged the re-opening proceedings. They argued that the applicants did have adequate time and facilities to prepare their defence, observing that they admitted the offence of their own free will and at no time suggested any other witnesses or evidence was necessary. The applicants were also strongly insistent that an urgent hearing be held. The Government accepted that no interpreter was provided but this was because the applicants, when questioned by the judge, indicated that they understood Macedonian and did not require an interpreter.

The applicants submitted that their ex officio counsel failed to object to the prosecutor ' s demand for an expulsion measure and did not warn the applicants of the consequences of waiving their right to appeal. They were therefore not provided with adequate representation for the defence contrary to Article 6 § 3(c). They argued that by holding the trial the same day they were deprived of protection of their rights, the ex officio lawyer not having sufficient time to study the file and prepare himself for the hearing. This infringed Article 6 §3(b). They submitted that the Basic Court did not pay enough attention to the applicants ' lack of active knowledge of the Macedonian language in breach of Article 6 § 3(e). The fact that they understood the charges, which might have been explained to them in their own language by the police or others did not imply that they must have understood Macedonian. If they had understood, they would certainly not have waived their right to appeal, resulting in threat of expulsion. The applicants ' representative also invoked Article 6 § 3(a) arguing that it did not appear from the file that the applicants had received the indictment before the hearing, which was an important procedural protection under domestic law.

b) The Court ' s assessment

In the present case, the Court would observe that the convictions and sentences imposed on the applicants by the Kriva Palanka Basic Court on 4 August 2000 were annulled on 8 November 2000 . They can no longer therefore claim to be victims of the defects in those proceedings. No similar complaints have been raised in respect of the second set of proceedings at which the applicants were represented by a lawyer of their own choice and had an interpreter.

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

4. Finally, the applicants complained that the re-opened criminal proceedings exceeded a reasonable time, invoking Article 6 § 1 of the Convention (set out above).

The Court recalls that the decision to rehear the case was taken on 8 November 2000 . Hearings took place from March to June 2002, culminating in the Basic Court ' s decision on 19 June 2002 to convict the applicants and to impose a two years ' suspended sentence, without any measure of expulsion. The re-opened proceedings therefore took over one year and seven months. While there appears to have been some delay in scheduling the hearings, once the procedure began it proceeded with expedition. The Court is not persuaded in the circumstances of this case that the applicants were subject to undue or prolonged uncertainty as to their situation and does not find that the proceedings exceeded the reasonable time requirement of Article 6 § 1 of the Convention.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Bo Å¡ tjan M. Zupančič              Registrar              President