SIJAKU v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
David Thór Björgvinsson
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 as he is under the protection of the International Criminal Tribunal for the former Yugoslavia (ICTY) as a potential witness. He is represented before the Court by Mr Ilievski, a lawyer practising in Skopje (former Yugoslav Republic of Macedonia). The facts of the case, as submitted by the parties, may be summarised as follows. 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 Republic of Macedonia in August 2000. 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 members of the Kosovo Liberation Army (“KLA”), 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 the 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 (FYR) of Macedonia. 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 ICTY in Skopje, FYR 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 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 was 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. By letter of 13 March 2002, the Government informed the Court that the applicant would not be expelled and that the Ministry of the Interior was investigating with the UNHCR the possibility of the applicant's transfer to a third State. 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. 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.