CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 mars 2003

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Cabral Barreto , President ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   K. Traja, judges , and   Mr   V. Berger , Section Registrar , Having regard to the above application lodged on 22 February 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Afrim Šijaku, is a national of Serbia and Montenegro, the former Federal Republic of Yugoslavia, who was born in 1969 ; his present whereabouts are unknown. He is represented before the Court by Mr   Ilievski, a lawyer practising in Skopje (Former Yugoslav Republic of Macedonia). A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The situation of the applicant while in Kosovo The applicant is an ethnic Albanian, who was residing with his family in Uroševac, Kosovo (in the former Federal Republic of Yugoslavia) until his arrival in the Former Yugoslav Republic of Macedonia in August 2000. He alleges that he was ill-treated by members of the Kosovo Liberation Army (“KLA”) because of his past collaboration with the Serbian police and his moderate political views. Furthermore, he claims that he was forced to leave Kosovo because of serious threats had been made against his life and he had been kidnapped and tortured. The applicant maintains that in 1989 he was forcibly recruited as an informer for the Serbian police. From 1989 to 1998 he helped the police to discover and learn about alleged smugglers of cigarettes, drugs and weapons, and other offenders. In 1998, when the security situation in Kosovo deteriorated, the applicant was directing Serbian police to houses in which KLA members, political opponents of the regime, and other ethnic Albanians referred to by the police as “terrorists and separatists” lived. In 1999 the applicant joined the political party “Democratic Initiative for Kosovo” (“DIK”), which did not support independence for Kosovo and promoted tolerance towards the Serbs and other ethnic minorities living in the province. The local Albanians marked the applicant as a collaborator of the Serbs and a traitor and suspected him of being a member of the “Black Hand” organisation (an alleged Serbian terrorist organisation, which was active in the urban parts of Kosovo province during the clashes between the Serbian security forces and the KLA). In addition to shunning and threatening him because of his collaboration with the Serbs, the Albanian militants disliked the applicant because of his background - his father was a chief in Uroševac police and his grandfather had been a judge of the District Court of Suva Reka - and because of his membership in DIK. The applicant maintains that three days after the withdrawal of the Serbian security forces from the province of Kosovo and the arrival of the NATO-led peacekeeping forces (KFOR) in June 1999, he was kidnapped by the KLA. He claims that he was held for three days in an office in Uroševac and was questioned about his links with the Serbian police. He was not ill-treated on that occasion. After his release, the applicant reported the event to the local headquarters of KFOR, but they had not found the kidnappers or taken any other measures. Ten days after that event the applicant was again kidnapped by KLA members. He was taken to the village of Slatina, in the municipality of Kačanik, where he was held in a cellar for about three months. In the course of his detention, the applicant was interrogated about the “Black Hand” organisation (the applicant denied being a member of it), his connections and collaboration with the Serbian police, and about the structure and leaders of the DIK. The applicant alleges that he was constantly kicked and beaten with an electric cable and electrically burned, with the result that he had swellings all over his body. The applicant could not bear the ill-treatment and tried to kill himself (by slashing his veins), but his suicide attempt was unsuccessful. He further alleges that another police collaborator, who was tortured at the same time and place, did not survive the acts of brutality. The applicant managed to abscond when the vehicle in which he was to be transported to another destination overturned near the village of Gabrince. He then went into hiding and temporarily stayed at different places. He ultimately returned to his home town of Uroševac, where he was again discovered by the KLA. In the spring of 2000 (the applicant claims to have no recollection of the exact date) four KLA members attempted to assassinate him in his uncle’s house, using guns with silencers. The incident was reported to KFOR and to the field delegate of the International Committee of the Red Cross. Their suggestion was that the applicant should leave Kosovo. On 25 August 2000, with the assistance of a protection officer of the United Nations High Commissioner for Refugees, the applicant was driven to the Blace border-crossing point, where he entered the Former Yugoslav Republic of Macedonia. 2.     The situation of the applicant after leaving Kosovo Upon his arrival in the FYR of Macedonia, the applicant was granted the status of Temporary Humanitarian Assisted Person (“THAP”) and was subsequently accommodated in a group centre. On 27 April 2001, after the THAP status for Kosovar Albanians expired, the applicant’s representative filed an application with the Ministry of the Interior – Department for Foreigners and Immigration Issues (Министерство за внатрешни работи - Сектор за странци и имиграциони прашања) , requesting that his client be granted refugee status and making mainly the allegations and complaints set out in the application to the Court. On 31 May 2001 the applicant’s representative obtained a memorandum from the office of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Skopje, FRY of Macedonia, in support of the applicant’s request to be granted refugee status by the national authorities. The memorandum contained a brief statement to the effect that the applicant was regarded by the ICTY as an important witness. No other supporting evidence was submitted owing (so the applicant’s representative maintained) to the confidentiality of proceedings before the Tribunal. By a decision of 6 July 2001 the Ministry of the Interior, following an interview with the applicant on 19 June 2001, refused his request. It held that the applicant’s statements had been intentionally false and contradictory, and no well-founded fear that the applicant would be exposed to persecution if returned to his country of origin had been established, as required by law, to justify his being granted refugee status. On 19 July 2001 the applicant, through his representative, lodged an appeal with the Government Appeals Board responsible for handling administrative issues arising in the areas of internal affairs, the judiciary, State administration, local self-government and religious affairs (Комисија на Владата нa Република Македонија за решавање во управна постапка во втор степен од областа на внатрешните работи, судството, државната управа, локалната самоуправа и работите од верски карактер). He maintained that the first-instance administrative body had erred in fact and failed to provide sufficient reasoning for its decision. The applicant’s representative also argued that the applicant’s case had not been comprehensively reviewed, no regard had been had to the ICTY memorandum of 31 May 2001, and the decision had been based on personal prejudice against the applicant rather than on his statements and on the evidence submitted. On 30 August 2001 the Government Appeals Board, upholding the reasoning given by the first-instance administrative body, dismissed the applicant’s appeal. It stated, inter alia , that after consideration of the first-instance decision, the concerns raised in the appeal and other documents in the case file, no well-founded fear of persecution of the applicant by the KLA in Kosovo had been established since the applicant’s statements had been assessed as lacking credibility and plausibility. It had also considered the ICTY memorandum but had attached no particular weight to it because it was based on the applicant’s false statements. On 2 September 2001 the applicant’s representative lodged a complaint with the Supreme Court (Врховен суд на Република Македoнија) , requesting the court to quash the decision of the Government Appeals Board and either grant the applicant refugee status or to set aside that decision and remit the case for re-examination. He maintained that although the applicant’s statements concerning to the effect that members of the KLA had tortured him and attempted to assassinate him had not been supported by documentary evidence, the mere fact that they were detailed, disclosing the names of Serbian police officers with whom he used to collaborate and the names of persons who had persecuted, tortured and attempted to kill him, should have been a sufficient ground for believing that they were true. Moreover, the credibility of the applicant’s statements should have not been questioned in view of the ICTY memorandum of 31 March 2001 to the effect that he was regarded as an important witness before that Tribunal. In the meanwhile on 28 September 2001, the applicant made an application to the Ministry of the Interior, requesting that the decision of the Government Appeals Board of 30 August 2001 should not be enforced pending the outcome of the proceedings before the Supreme Court. This was actually a request by the applicant lodged under Article 39 of the Aliens Act not to be expelled. However, it appears that no decision was made on the application. On 16 January 2002 the Supreme Court dismissed the applicant’s complaint on the ground that the applicant had not fulfilled the requirements of section 46 of the Aliens Act or those of the 1951 Geneva Convention relating to the Status of Refugees as he had failed to substantiate his allegations of persecution in his country of origin. It held, in particular, that the applicant, as a national of the Federal Republic of Yugoslavia, could have enjoyed effective protection, if not in Kosovo, then in other parts of his country of origin. The court had regard to the applicant’s allegations that he was marked by the Albanians as a collaborator of the Serbs and that he had been kidnapped and his life had been threatened on account of his past collaboration with the Serbian police and his membership of the DIK, but he had failed to provide evidence in support of these allegations. The court further indicated that regard had been had to the memorandum issued by the ICTY but, since no other evidence had been submitted in support, it found it unable to accept that memorandum as an additional reason for his fears of persecution in his country of origin. On 7 February 2002 the applicant’s representative was served with a notice by the Ministry of the Interior - Department for Foreigners and Immigration Issues, stating that his client was requested to leave the country by 5 March 2002 at the latest. In a letter of 19 February 2002 to the UNHCR Protection officer in Skopje, the ICTY Chief of Investigations, Mr Opez-Terres, confirmed that the applicant was a potential witness and was expected to be called to testify in future trials to be held by the Tribunal. Furthermore, he stated that in the light of the information available to the Tribunal, “... It would not be safe for the applicant to be returned to Kosovo or Serbia due to the very real expectation that his basic human rights would be under threat...” On 28 February 2002 a request for an interim measure under Rule 39 was lodged with the Court, which granted it. On 26 March 2002 the applicant voluntarily left the Transit Centre for Foreigners, which is an open place, the foreigners living there having complete freedom of movement. Ever since then the applicant has been under the protection of the ICTY as a potential witness and has been taken to a safe address, which is temporary. In his latest communication to the Court, the applicant’s representative indicated that the ICTY officials with whom he had made contact had stated that the applicant’s current place of residence was dictated by the needs of the Tribunal and the duration of his stay there was uncertain. B.     Relevant domestic law The relevant provisions of the Aliens Movement and Residence Act (Закон за движење и престој на странци) , published in issue no. 36/92 of the “Official Gazette of the Republic of Macedonia”, may be summarised as follows. Section 35 provides, inter alia , that if an alien does not leave the State’s territory within the given time-limit, he shall be escorted by an official of the Ministry of Interior to the State border or to the embassy or consulate of his country of origin. Section 39 stipulates that an alien shall not be expelled from the State’s territory if his life will thereby be put in jeopardy owing to his racial, religious or national affiliation or his political beliefs or if he runs the risk of being exposed to torture or inhuman treatment. Section 46 provides that an alien who left his country because he was persecuted for his democratic political convictions and actions, cultural or scientific activities or because of his national, racial or religious affiliation can be granted refugee status. COMPLAINTS 1.     The applicant complained under Articles 2 and 3 of the Convention that he would face a serious risk of being killed and being subjected to torture or inhuman treatment if he were to be expelled to his country of origin, Serbia and Montenegro. 2.     The applicant also relied on Article 13 of the Convention, complaining that he had no effective remedy at his disposal in respect of his complaints about potential violations of Articles 2 and 3 of the Convention. THE LAW 1.     The applicant complained that his life would be put in jeopardy and that he would be subjected to torture or inhuman treatment if he were to be expelled to his country of origin. In that connection, he maintained that he had already been subjected to torture or inhuman treatment and to an attempt on his life by members of the Kosovo Liberation Army (KLA). If he were to be returned to parts of Serbia and Montenegro other than Kosovo, he would also risk persecution, torture and even execution by persons accused by the prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) against whom he might be summoned to testify and who were still working in high positions in the Serbian police. As an ethnic Albanian, he feared reprisal by the Serbian population as the memories of the war were still fresh. He relied on Articles 2 and 3 of the Convention, the relevant parts of which read as follows: 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 considers that it cannot determine the admissibility of this complaint on the basis of the case file and that it is therefore necessary, in accordance with Rule   54   §   3   (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   2.     The applicant complained about the lack of an effective domestic remedy for his complaints under Articles 2 and 3 of the Convention. In that regard he relied on Article 13 of the Convention, which reads as follows: “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.” The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision (see, mutatis mutandis , Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydin v. Turkey , judgment of 25   September   1997, Reports 1997-VI, pp. 1895-96, § 103; Kaya v. Turkey , judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). However, Article 13 does not in any way guarantee the success of such a remedy at national level. As to the present case, the Court notes that the applicant was able to apply for refugee status to the Ministry of the Interior, which refused his request. It further notes that the first-instance decision was reviewed by an administrative appellate body, which dismissed the applicant’s appeal. Subsequently, the administrative decisions were judicially reviewed by the Supreme Court, which upheld them. The Court observes that both the administrative and the judicial bodies took into consideration the applicant’s allegations that if he was expelled to the former Federal Republic of Yugoslavia he might face treatment contrary to article 3 of the Convention and that his life might be endangered, but it found such allegations unfounded. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints under Articles 2 and 3 of the Convention; Declares inadmissible the remainder of the application. Vincent Berger   Ireneu Cabral Barreto   Registrar   President