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| Jurisdiction | England & Wales |
| Judge | J A J C Gleeson |
| Judgment Date | 25 November 2002 |
| Neutral Citation | [2002] UKIAT 5410 |
| Court | Immigration Appeals Tribunal |
| Date | 25 November 2002 |
| Docket Number | Appeal No: HX/47196/2001 |
[2002] UKIAT 5410
IMMIGRATION APPEAL TRIBUNAL
Mrs J A J C Gleeson (Chairman)
Rt. Hon. the Countess of Mar
Appeal No: HX/47196/2001
The appellant, Mr Mohammed Shahadat Hussain, appeals with leave against the determination of an Adjudicator (Mrs A. K. Simpson) dismissing his appeal against the decision of the respondent on this 12 September 2001, setting removal directions after refusal of asylum. He is a national of Bangladesh.
At the hearing, Mr F. Muhammad of Counsel appeared for the appellant. Ms M. Banwait, Home Office Presenting Officer, represented the respondent.
Leave to appeal was granted on the narrow ground that in paragraph 26 of the determination the adjudicator's assessment of the likelihood of a fair trial might be erroneous in the light of the April 2002 CIPU Report on Bangladesh. The Tribunal now has the benefit of the October 2002 Report and it was based on this report that the appeal was argued.
Mr Muhammad relied upon paragraphs 25 to 26 of the adjudicator's determination to support his contention that the Adjudicator had erred in her consideration of the appellant's risk of a breach of Article 6 (fair trial) of the European Convention on Human Rights on return—
“25. However, the Awami League is no longer in power in Bangladesh. From 20 December 1998 until 1 October 2001, the Jatiya Party was in alliance with the Bangladesh National Party and Jamaat-e-lslami. Although their objective has now been realised and their alliance dissolved, there is nothing in the background information before me to indicate that members of the Jatiya Party are presently at risk of persecution for political opinion at the hands of the BNP.
26. I acknowledge that the accusations made by the Awami League against the appellant are still to be resolved by the courts and as the appellant failed to answer to his bail, it is reasonably likely that the appellant will be arrested upon his return to Bangladesh. However, in light of the change in government and Bangladesh's independent judiciary, I am satisfied that the appellant will, in due course, receive a fair trial in Bangladesh.”
The Adjudicator had found the appellant to be a credible witness in relation to two false murder charges filed against him by the Awami League before they lost the 2001 election. Under the European Convention on Human Rights and Fundamental Freedoms 1950, the burden of proof, he argued, was on the Secretary of State to show that the appellant was not in danger, once such danger had been asserted by the appellant. He was unable to produce any authority for this novel proposition.
He referred the Tribunal to the following passages in the October 2002 CIPU Report, which contrary to the Applicant's contention, paint a picture of properly run legal proceedings and rugged judicial independence in the High Court, of which on his own case the appellant has twice been the beneficiary —
“ 4.3 Judiciary1
4.3.1. Under the Constitution all citizens are equal before the law and have a right to its protection.
4.3.2. The court system has two levels: The lower courts and the Supreme Court. Both hear civil and criminal cases.
4.3.3. The lower courts consist of magistrates, who are part of the executive branch of government, and session and district judges, who belong to the judicial branch.
4.3.4. The Supreme Court is divided into two sections, the High Court and the Appellate Court. The High Court hears original cases and reviews cases from the lower courts. The Appellate Court has jurisdiction to hear appeals of judgments, decrees, orders, or sentences of the High Court. Rulings of the Appellate Court are binding on all other courts.
4.3.5. Trials are public. The law provides the accused with the right to be represented by counsel, to review accusatory material, to call witnesses, and to appeal verdicts.
4.3.6. State-funded defense attorneys rarely are provided, and there are few legal aid programmes to offer financial assistance. In rural areas, individuals often do not receive legal representation. In urban areas, legal counsel generally is available if individuals can afford the expense. However, sometimes detainees and suspects on Police remand are denied access to legal counsel. Trials that are underway are typically marked by extended adjournments whilst many accused people remain in prison.
4.3.7. People may be tried in absentia, although this rarely is done. There is no automatic right to a retrial if a person convicted in absentia later returns. Absent defendants may be represented by state-appointed counsel, but may not choose their own attorneys, and, if convicted, may not file appeals until they return to the country.
4.3.11. In September 1996 the then Government established an “expert committee” within the law ministry to develop proposals to further separate the judiciary from the executive.
4.3.12. The US State Department reported in 2002, that on 21 June 2001, the Supreme Court reconfirmed an earlier 12-point ruling regarding the procedures for a 1997 High Court order to separate the judiciary from the executive. The 12-point ruling declared which elements of the 1997 order could be implemented without requiring a Constitutional amendment. The Supreme Court ordered the Government to implement those elements within 8 weeks.
4.3.13. On 5 August, Ishtiaq Ahmed, (law advisor to the caretaker Government that had been convened to oversee national elections) announced that the judiciary would be separated from the executive by promulgating an ordinance.
4.3.14. In January 2001 the High Court ruled illegal all fatwas, or expert opinions on Islamic law. The ruling resulted in violent public protests. The Supreme Court later stayed the High Court's decision.
4.4 Internal Security 2
4.4.1. The Home Affairs Ministry controls the Police and paramilitary forces, which have primary responsibility for internal security. The Police are therefore accountable to the executive.
4.4.2. According to the US State Department, Governments frequently use the Police for political purposes. Police often appear reluctant to pursue investigations against people associated with the ruling Party.
4.4.3. The US State Department goes on to say that there is widespread Police corruption and lack of discipline, that Police officers commit serious Human Rights abuses for which they are seldom disciplined and they routinely employ torture and other abuse during arrests and interrogations. This may consist of threats, beatings and, occasionally, the use of electric shock.
4.4.4. The US State Department report on Human Rights for the year 2001 states that in 1998 the Deputy Commissioner of the Dhaka Police detective branch publicly defended the use of physical coercion against suspects, saying that the practice was necessary in order to obtain information.”
Counsel accepted that nothing in these excerpts indicated that a fair trial could not be had in Bangladesh. The appellant had been arrested for murder, released and then re-arrested. Surprisingly he had no information about the progress of the case after he left the country, and had been able to apply for a British surgery qualification...
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