FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14712/03 by Murat HALITI and Others against Denmark

The European Court of Human Rights ( First Section) , sitting on 19 February 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 9 May 2003,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Murat Haliti, born in 1970, and the second applicant, Gjylperian Haliti, born in 1977, and their three children, born in 1995, 1997 and 2002 respectively, are nationals of Serbia and Montenegro of Roma origin. They live in Nysted, Denmark. They are represented before the Court by European Roma Rights Centr e, Budapest.

A. The circumstances of the case

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

The applicants entered Denmark on 24 July 2001 without any travel/identification papers and requested asylum. In support thereof they maintained that Roma in general were being persecuted and harassed in Kosovo. The first applicant explained inter alia that on 30 July 1999 during approximately 20 minutes he had been beaten up by the Kosovo Liberation Army, which suspected him of paramilitary activities.  Thus, the applicant and his family had to leave Kosovo, and from August 1999 until May 2001 they lived in the Former Yugoslav Republic of Macedonia. Thereafter, they returned to their house in Prizren in Kosovo. However, since the applicants were harassed verbally and someone threw stones at their house, they fled to Denmark.

On 15 April 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicants asylum, a decision which was upheld on appeal by the Refugee Board (Flygtningenævnet) on 14 April 2003 . Both instances found that asylum could not be granted solely on the grounds of the incidents referred to that took place in July 1999. It was recalled that Kosovo was then in a state of war; that under the mandate of the United Nations, the NATO-led international Kosovo Force, KFOR, being responsible for establishing and maintaining security in Kosovo, on 12 June 1999 intervened in the conflict between Serbian and Kosovar Albanian forces; and that subsequent thereto, for a short while, Albanian armed groups took over specific areas.

Moreover, the Aliens Authorities and the Refugee Board found that the incidents occurred in May/June 2001 failed to attain the minimum level of severity to fall within the notion of persecution as set out in section 7 of the Aliens Act ( Udlændingeloven ) .

Finally, having regard to the present general security situation in Kosovo, including the presence of KFOR and the civil UN ‑ administration, the Aliens Authorities and the Refugee Board found that no concrete danger existed that the applicants would be subjected to persecution, if returned. The applicants were ordered to leave the country immediately.

On 14 April 2003 the applicants applied the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) for a residence permit on humanitarian grounds pursuant to section 9 b of the Aliens Act or in the alternative, without invoking any specific sections of the Aliens Act, for any other possible grounds. In support of their application the applicants maintained that they were suffering from Post Traumatic Stress Disorder. It appears that a statement of 25 May 2002 by a psychologist was submitted in addition to various copies of receipts concerning anti-depressive and sleeping medicine.

By letter of 6 May 2003 the Ministry of Refugee, Immigration and Integration Affairs informed the applicants that they were allowed to stay in Denmark during the processing of their application. The proceedings before the Ministry are still pending.

The Aliens Act and Kosovars in Denmark.

According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicants in the present case were not among those evacuees. They entered Denmark themselves in July 2001. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”;  “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.

The applicants in the present case are not covered by section 9 1 (e) of the Aliens Act because they never held a residence permit under the “Kosovo Emergency Act” and they entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – they had the possibility of applying for asylum pursuant to section 7 of the Aliens Act, for a residence permit on humanitarian grounds pursuant to section 9 b of the Act, or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act.

Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases.

The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs.

A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.

According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary.

In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police (Rigspolitichefen) and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice.

In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicants has not been planned yet. Normally a forced return takes quite some time, not less than two or three months.

Relevant international materials

With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance:

It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003.

COMPLAINTS

1. The applicants complain that an implementation of the order to deport them to Kosovo will be in breach of Article 3 of the Convention.

2. Moreover, the applicants complain that Articles 13 and 14 of the Convention have been breached.

THE LAW

1. The applicants complain that being returned to Kosovo would amount to a breach of Article 3 of the Convention, which reads as follows:

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

The applicants maintain that they should have been granted asylum in Denmark. Referring in particular to the mission report of March 2003 to the Council of Europe, by Alan Phillips, First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities; to the UNHCR’s Position on Continued Protection Needs of Individuals from Kosovo of March 2001, April 2002 and January 2003, and to Germany’s undertaking not to return Roma to Kosovo in 2003, they submit that UNMIK has not been able to provide Roma the protection required. Also, the applicants doubt that there is a close dialogue between the Danish National Commissioner of Police and UNMIK.

The Court recalls that the applicants on 14 April 2003 applied the Ministry of Refugee, Immigration and Integration Affairs for a residence permit on humanitarian grounds pursuant to section 9 b of the Aliens Act and that those proceedings are still pending .

In the circumstances of the case, the Court finds it unnecessary to examine further whether the requirement of exhaustion of domestic remedies has been complied with since it finds that the complaint is, in any event , inadmissible for the reasons set out below.

The Court recalls 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 (cf. for example 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 e.g. Bensaid v. the United Kingdom , no. 44599/98, §§ 32 and 34, ECHR 2001-I and Arcila Henao v. the Netherlands (dec.), no. 13669/03, 24 June 2003, unreported). According to established case-law aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. However, in exceptional circumstances an implementation of a decision to remove an alien may, owing to compelling humanitarian considerations, result in a violation of Article 3 (see D. v. the United Kingdom , judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III, p. 794, § 54).

As regards the general situation in Kosovo, the Court notes that incidents of violence and crimes against minorities continue to be a cause for concern, and that the need remain for international protection of members of ethnic communities, notably Kosovo Serbs, Roma, Ashkaelia and Egyptians. Consequently, t he Secretary General on the United Nations Interim Administration Mission in Kosovo has recently stated, among other things, that achieving sustainable minority returns to Kosovo is difficult, time ‑ consuming and resource-intensive. Over 2,200 displaced persons have returned in 2003 to areas where they are a minority (including 1,016 Kosovo Serb, 693 Roma/ Ashkaelia /Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). It is unclear whether these figures concern voluntary or forced returns. However, it is clear that forced returns to Kosovo is taking place and that such are carried out subsequent to an individualised screening process performed by UNMIK. In the present case the Court notes in particular that the Danish National Commissioner of Police has already presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they were forced to leave Denmark. In some cases UNMIK objected to the return of the persons in question for which reason the Danish National Commissioner of Police suspended the return until further notice.

The Danish National Commissioner of Police has not yet contacted UNMIK as to the applicants in the present case since their forced return has not been planned yet. Thus, relying on the information provided by the Government, the Court is satisfied that in case UNMIK object to the return of the applicants, their return will be suspended until further notice.

In these circumstances the Court finds that no substantial grounds have been shown for believing that the applicants, being ethnic Roma, would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment upon return to Kosovo.

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

2. Moreover, the applicants invoke Articles 13 and 14 of the Convention. The Court has examined this part of the application as submitted by the applicants. In the light of all the material in its possession, the Court finds that this does not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis       Registrar President