BERISHA & OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
David Thór Björgvinsson
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 Skopje. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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.