THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 60855/00
by Redjep BERISHA and Others
against the
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
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 nationals 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
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
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
2. Djafer, Shanie and Jashar Berisha's account of their situation in Kosovo
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
3. The situation of all the applicants after leaving Kosovo
On their arrival, the Ministry of the Interior granted the applicants the status of Temporary Humanitarian Assisted Persons.
On
The main hearing commenced at
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
On
In the meanwhile the applicants appointed
another lawyer. On
On
On
Hearings took place in the presence of the
applicants' current legal representative on 7 and 20 March,
On
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.
2. Law on Movement and Residence of Aliens
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
4. In his submissions of
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
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
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
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
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
b) The Court's assessment
In the present case, the Court would observe
that the convictions and sentences imposed on the applicants by the
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
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 Boštjan M. Zupančič Registrar President