Svazas v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Murray Stuart-Smith,Lord Justice Sedley |
| Judgment Date | 31 January 2002 |
| Neutral Citation | [2002] EWCA Civ 74 |
| Docket Number | Case No: C/2001/1964 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2002 |
[2002] EWCA Civ 74
Lord Justice Simon Brown
Lord Justice Sedley and
Sir Murray Stuart-Smith
Case No: C/2001/1964
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION
APPEAL TRIBUNAL
Mr. Hugh Southey (instructed by Purcell Brown & Co. for the Appellant)
Mr. Robin Tam (instructed by Treasury Solicitor for the Respondent)
Proceedings
This is one of two appeals which were to have come together before the court by permission of Schiemann LJ. and Keene LJ. respectively. Each was an appeal against a decision of the Immigration Appeal Tribunal upholding the dismissal by an adjudicator of an application for asylum.
The first appeal, Baguziene v Secretary of State for the Home Department (C/2001/1278) was, however, disposed of by an agreement, ENDORSED BY Collins J. as President of the I.A.T., that it be remitted to the Immigration Appeal Tribunal for rehearing.
To an important but not complete extent the facts of the two cases converge. Both appellants have left Lithuania and have sought asylum in this country on the ground that, as members of the now illegal Communist Party of Lithuania, they have a well-founded fear of persecution from which the Lithuanian state is unable or unwilling to protect them. In each case differently composed appeal tribunals have held that although the threat of maltreatment emanates from agents of the state, namely the police, an imperfect but sufficient level of protection is afforded by that state. The reasoning of the two tribunals, however, differs in ways which are not wholly referable to the factual differences between the two cases.
Mr Svazas's appeal was heard by the IAT (Mr M.W.Rapinet, Mr J.R.A.Fox and Mrs M Padfield) on 17 May 2001. The IAT had before it the decision in Ms Baguziene's case, which had been heard on 19 March 2001 by a panel consisting of Mr D.K.Allen, Mrs J. Jordan and Dr A.U. Chaudhry. This decision, promulgated on 9 April, is adopted and built upon extensively in the determination in Mr Svazas's appeal, making it necessary to read the two together.
History
What the two cases have in common is the following. Following the break-up of the Soviet Union and the restoration of independence to Lithuania, the Communist Party was banned in August 1991. It was not made a crime to be a member of the party. According to Dr. Vesna Popovski, a specialist in contemporary Lithuanian studies, whose evidence both tribunals found helpful, members of the Communist Party were nevertheless arrested and detained for up to 24 hours and might be maltreated in detention. Such violent conduct on the part of the police was unconstitutional and unlawful, and the authorities tried to prosecute the officers responsible. The tribunal which heard Ms Baguziene's case matched her evidence with the State Department report and Home Office Country Assessment which were also before them and said (in paragraph 27):
"As we understood Dr Popovski's evidence, in essence she was saying that from the point of view of the government, matters such as the events that occurred to the Appellant should not happen and that they were trying to prosecute officers for offences of this kind. This is confirmed by the objective evidence elsewhere. For example it is stated at paragraph 4.28 of the Country Assessment for October 2000 that police sometimes beat or otherwise physically mistreat detainees. The local press have reported that incidents of police brutality are becoming more common. In many instances, the victims reportedly are reluctant to bring charges against police officers for fear of reprisals. A total of 79 officers were dismissed for illegal or fraudulent activities in the first six months of 1998 for a variety of offences, compared with 182 for all of 1997. During the first six months of 1999 four police officers were charged with abuse of power and one officer was sentenced. The Ministry of Interior stated that the district police and inspectors are the most negligent in the force. To strengthen the integrity of the police the Inspectorate General of the Ministry of the Interior was given administrative autonomy in May 1997. It is said at page 2 of the State Department Report that in 1999 the Inspectorate General was reorganised into an office of the Inspector General, and some functions of the inspectorate were delegated to the Internal Investigations Division of the police department. The Inspector General cannot investigate abuses of his own authority but can act only on the order of the Minister. Mr Jones [Ms Baguziene's counsel] referred us to the fact that at 5.9 of the Country Assessment it is said that a key exception to the normal co-operation of government authorities local NGOs is the Ministry of Interior, which has continually refused to release information on police brutality and statistics on corruption based incidents. However the most recent State Department Report notes at page 6 that a key exception in the past of this co-operation was the Ministry of Interior which continually refused to release information on police brutality and statistics on corruption related incidents. It says however that the Ministry is more willing to share such information however it has released few statistics or reports. We note also the association of the defence of human rights in Lithuania, an umbrella organisation for several small human rights groups all of which operate without government restriction."
The tribunal which heard Mr. Svazas's case expressed its indebtedness to the passage quoted above. It went on, assisted by a further report of Dr. Popovski of 3 May 2001, to make further findings which will I set out in full a little later. First, however, it is necessary to look at the two cases separately.
Ms. Baguziene
Setting on one side the differences between the adjudicator and the tribunal, the facts established about Ms Baguziene include these. She had been a member of the Communist youth organisation since 1996 and an active member of the Lithuanian Communist Party since 1998. In October 1999 she received threatening telephone calls. In November and December 1999, and again in January 2000, she was arrested, briefly detained and interrogated. On the third occasion she was raped, subsequently suffering a miscarriage. Three days after her last arrest, on 7 January 2000, she made a complaint to a senior police official. Her complaint was treated with contempt. A little over a fortnight later she came to the United Kingdom, was given permission to remain for six months, and after five weeks here applied for asylum.
It does not seem to have been doubted by the IAT that Ms Baguziene had a fear of persecution by reason of her political opinions. The question whether her fear was objectively well founded was approached by the Tribunal in terms of sufficiency of protection. Their conclusion (in paragraph 29) was this:
"Although we were not addressed on this point specifically, it seems to us that it is impossible to consider this case without referring to the decision of the House of Lords in Horvath v Secretary of State for the Home Department which is reported at [1999] INLR 7 (the IAT hearing) at [2000] INLR 15 in the Court of Appeal, and [2000] 3 WLR 379 in the House of Lords. It is clear from this judgement that in considering the ability of the state or its willingness to protect, it is a pre-requisite that the state must have in place a general system of criminal law enforcement for its citizens from which by its terms, the asylum applicant or the class to which he belongs is not excluded. This requirement is met by considering whether the duty to its citizens at large is met by the provisions made. It is clear from our review of the objective evidence in this case that, albeit underground activity by the Communist Party is considered illegal, there is no suggestion that the Lithuanian legal system and in particular its general system of law enforcement is not available for most communists and non-communists. Dr Popovski made it clear that the authorities would say that activities such as happened to the Appellant in this case should not occur and that it is aware of the fact that local police were involved in activities which are contrary to Lithuanian law and they are trying to prosecute these officers. There is evidence before us which we have described above of prosecutions taking place albeit that there are difficulties and sometimes people are concerned about reprisals. Nevertheless, even bearing in mind what happened to the Appellant in Lithuania, we consider that the system in place is one which offers her sufficiency of protection. Internal flight would not appear to a possibility, but we do consider that the machinery is there for her to take action and to report and seek the prosecution of any police officer who does not treat her in accordance with the provisions of the law in Lithuania, and we consider that as a consequence she has not made out her claim to be in need of international protection."
Mr Svazas
Mr Svazas is also 30 years old, and also an active member of the Lithuanian Communist Party. The adjudicator, whose findings were uncontested, accepted his evidence that he was first arrested in 1993, then in August 1995, then in September 1998. On the first occasion he had been held for two weeks, during which he was beaten and kicked. On the second occasion he had been held for between 10 and 14 days and similarly treated. In December 1998, following two weeks' further detention in September, he was charged with being engaged in...
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