FIFTH SECTION
DECISION
Application no. 44922/04
by K. against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 9 October 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 17 December 2004,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court which was subsequently discontinued,
Having deliberated, decides as follows:
THE FACTS
The applicants (parents and their three juvenile children) are Serbian nationals of Ashkaelia/ Roma ethnic origin from Kosovo. They are represented before the Court by Mr Z. Gavriloski and Ms A. Mustafovska, lawyers practising in Skopje.
The facts of the case, as submitted by the applicants and as they appear from the documents in the case file, may be summarised as follows.
1. Account of events provided by the applicants before their arrival in the former Yugoslav Republic of Macedonia
The applicants resided in Germany between 1993 and 2003 with asylum status. Having been refused an extension of that status in Germany, on 24 October 2003 they were deported to Kosovo on the basis that situation had improved and that sustainable conditions for normal life had returned in the province. Since their house in their village was allegedly occupied by an Albanian family, they spent over five months in another city. On 16 March 2004 they returned in their village, once their house was vacated.
The applicants referred to mass demonstrations and clashes of an ethnic origin that took place throughout Kosovo between 15 and 18 March 2004, the worst of which occurred in their village. After having been evacuated from their house, the applicants stayed in several places in Kosovo, including temporary refugee camps guarded by the KFOR forces.
2. Application for asylum in the former Yugoslav Republic of Macedonia
On 1 July 2004 the applicants illegally entered the former Yugoslav Republic of Macedonia. On 28 July 2004 they applied for asylum on the grounds of a lack of safety and security in Kosovo. Their request was considered in summary proceedings (итна постапка). On 11 August 2004 the Ministry of the Interior (“the Ministry”) dismissed their request as abusive referring to the German authorities’ decisions of 2003 to discontinue their asylum and to deport them to Kosovo. The applicants were also ordered to leave the State within five days from the date of receipt of that decision. This decision was based on section 35 § § 1 (2) and 2 (5) of the Asylum and Temporary Protection Act. On 13 September 2004 the second-instance Commission dismissed the applicants’ appeal finding no grounds to depart from the Ministry’s decision which became final since, under section 37 § 4 of the Act, no appeal lay against it. The applicants’ submission of 23 October 2004, requesting the Ministry to suspend the expulsion order, remained unanswered. The applicants subsequently went into hiding.
On 22 December 2004 the President of the former Fourth Section decided to indicate to the Government of the former Yugoslav Republic of Macedonia, under Rule 39 of the Rules of Court, not to expel the applicants to Kosovo until 13 January 2005.
By a letter of 11 January 2005, the applicants’ representatives (“the representatives”) informed the Court that they could not establish contact with their clients and that the latter might have left the former Yugoslav Republic of Macedonia. However, they could not confirm under what circumstances.
On 13 January 2005, the former Third Section extended the application of the Rule 39 measure until 3 March 2005. The representatives were asked to provide accurate information about the applicants’ whereabouts.
On 28 February 2005 the representatives notified the Court that the applicants had left the former Yugoslav Republic of Macedonia for Kosovo on an unspecified date in December 2004 using their passports. According to the information provided by the UNHCR, the applicants were located in a motel in Kosovo guarded by the KFOR forces in the vicinity of their village.
On 3 March 2005 the representatives informed the Court that according to an information provided by the applicants, they had left the respondent State voluntarily and had returned to their reconstructed house.
COMPLAINTS
The applicants complained under Articles 2 and 3 of the Convention that they might be subject to degrading and life threatening treatment if they were expelled to Kosovo. The risk of irreversible harm emanated from the widespread violence against ethnic minorities in Kosovo.
The applicants also complained under Article 13 of the Convention in conjunction with their complaint under Article 3 of the Convention.
THE LAW
Article 37 § 1 of the Convention, in so far as relevant, provides as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; ...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
By a letter of 26 March 2007, the representatives informed the Court that they wished to withdraw the application and requested that the case to be struck out of the list of cases.
The aforesaid letter was transmitted to the Government with a request to submit any comments which they might wish to make by 14 June 2007. The Government did not make any comments within this time-limit.
In the light of the present circumstances, the Court concludes that the applicants do not intend to pursue their application, within the meaning of Article 37 § 1 (a). In accordance with Article 37 § 1 in fine of the Convention, the Court finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of the application.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy