SS v Secretary of State for the Home Department (Lithuania) [2001] UKIAT 01TH01101 (06 July 2001) [2001] UKIAT 01

UKIAT
SS v Secretary of State for the Home Department (Lithuania) [2001] UKIAT 01TH01101 (06 July 2001)
[2001] UKIAT 01 · 2001-07-06
[1]SS v Secretary of State for the Home Department (Lithuania) [2001] UKIAT 01TH01101 HX-58314-00 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 17 May 2001 Date Determination notified: 06 July 2001 Before Mr M W Rapinet (Chair) Mr J R A Fox Mrs M Padfield JP Between SS APPELLANT and Secretary of State for the Home Department RESPONDENT Representation :For the appellant: Mr S. Middleton, counsel, instructed by Purcell Brown & Co. For the respondent : Ms J. Jeffery, Home Office Presenting Officer. DETERMINATION AND REASONS The appellant, who is a citizen of Lithuania, appeals by leave of the Tribunal granted on 23 March 2001 against the determination of an adjudicator (Mr J.F. Pullig) dismissing his appeal against the decision of the Secretary of State to refuse asylum and to give removal directions to Lithuania. The grounds of appeal are contained in the bundle before us.[2]The appellant arrived in this country on 17 December 1998 accompanied by his daughter and immediately claimed asylum. He claimed to be a member of the Communist Party in Lithuania and because of his activities for that party had been arrested on various occasions between 1992 and 1998. On the last occasion, which was in September 1998, he had been held for a month and then released due to the illness of his parent and had been required to sign on on a weekly basis. He failed to do so and left the country.[3]The adjudicator has accepted the basis of the claim and found that the appellant fears prosecution rather than persecution, the Communist Party being a banned party in Lithuania, and that prosecution would not amount to persecution because, although he accepts that there is a risk of brutality in custody, he finds:
'There is no evidence in the background documentation to indicate that Communists, supporters of the old regime or any other individuals, are the subject of police brutality or brutality greater than others might be subjected to, merely because of their membership or support for the Communist Party.'
[4]Mr Middleton had very helpfully put before us a skeleton argument upon which he enlarged in his submissions. He submits that the appellant was arrested by reason of his activity within the Communist Party and was thus a particular target for ill-treatment by the police. If he were to be returned he would be taken into custody as a Communist and would be attacked by the police because of that status. He referred us to various passages in the Court of Appeal judgment in Demirkaya [1999] INLR 441 and in particular the judgment of Stewart-Smith LJ. He submitted that the state was unable to prevent arbitrary arrest and maltreatment by the police. He fully accepted that Lithuania now has in place a very sound constitution but maintained that the provisions of that constitution were not being observed at ground level.[5]Miss Jeffery, in her submissions, drew our attention to a Tribunal case of Baguziene (01/TH/0582) which is a recent case and one which has analysed the evidence of Dr Popovski, and has submitted a report in this case relative to this particular appellant. She submitted that Dr Popovski's report in relation to this case is in fact more optimistic as to the future than the report referred to in Baguziene and drew our attention to the Home Office report on Lithuania, and in particular the paragraph which indicates the willingness of the authorities in Lithuania to discipline its officers who abuse their power. She also drew our attention to the US State Department Report which Mr Middleton has put in evidence and certain paragraphs on page 2 dealing with the steps taken by the government to ensure the observation of human rights in Lithuania.[6]Mr Middleton, in a final submission, maintained that the Communists in Lithuania are excluded from state protection, irrespective of whether or not ....[7]The adjudicator in this case has taken a narrow point on which to base his rejection of the appeal. That point is that the appellant fears prosecution for undertaking activities which are proscribed by the state by virtue of his membership of the Communist Party, and that such prosecution will not amount to persecution because the conditions under which he might be jailed would be no worse for him than they are for other convicted criminals, which he accepts are poor, and that he would not be subjected to additional police brutality over and above that suffered by other prisoners by virtue of his membership or support for the Communist Party. The following points are not in dispute in the appeal before us: 1. The appellant has been an active member of the Communist Party for some years. 2. That party is banned and has been since 1991 according to Dr Popovski. 3. The appellant has been arrested by reason of his activities in that party; the last occasion being in September 1998 when he was released on reporting restrictions which he has since failed to observe. 4. By reason of this there is a reasonable likelihood that he may well be arrested upon return.[8]The adjudicator has also accepted that prison conditions are such in Lithuania that he may well be subjected to a degree of police brutality whilst in detention.[9]We think it worth observing that the appellant became active in the Communist Party in 1992 i.e. a year after it had become a banned party. Furthermore, he accepts that the activities he embarked upon were illegal and that police interest in him arose out of that. Finally, he stated in evidence that 'had he realised he would end up in jail he would not have undertaken the activities he did'. We take this from paragraph 15 of the determination. It is clear that the appellant knew that he belonged to an illegal organisation, knew that the activities upon which he engaged were illegal and was not surprised that the police were interested in him. We entirely agree that he might well be prosecuted upon return by reason of his illegal activities and this has not been disputed by Mr Middleton.[10]The question therefore is whether, assuming the prosecution is successful and he is sentenced to detention, that would amount to persecution. No point has arisen before us as to whether or not any sentence might be unduly harsh in relation to the nature of the offence committed. No evidence has been put before us as to the length of sentences now passed for this type of crime and we are therefore not in a position to make any judgment as to whether or not any sentence would be so harsh as to amount to persecution. We concentrate entirely on the question of whether or not he would suffer maltreatment at the hands of the police, whilst in prison, either awaiting trial or following sentence, and whether that maltreatment amounts to persecution because it arises from his membership of the Communist Party.[11]We are grateful to Miss Jeffery for drawing our attention to the case of Baguziene which analyses very helpfully the evidence of Dr Popovski which was put forward in that case. We refer to paragraph 27 of that determination. He refers to the appointment of an Inspectorate General in order to strengthen the integrity of the police. We have also considered the report from Dr Popovski relative to this case, the summary of the overall human rights situation in Lithuania contained in paragraph 1 is useful. It refers to discrimination against national minorities but not discrimination against members of the Communist Party. It refers also to the action being taken by the government (within in the context of Lithuania's membership for application of the European Union) to deal with police brutality and corruption in that country. Interestingly, it contains three sentences which we consider to be material. It states:
'Lithuanians are still learning to come to terms with their Communist past. They view their Communist past as imposed by the Soviet Union and Russian people. Therefore, it is very difficult to accept that there are some ethnic Lithuanians who are attracted to and support Communist ideology.'
[12]It states in the penultimate paragraph of her report:
'One has to bear in mind that Lithuania has been a democracy for a short period of time and it is only learning to put in practice democratic institutions. Whilst it has implemented political and civil rights a democratic culture has yet to be developed.'
[13]We also consider the US State Department Report which bears out much of what Dr Popovski says in her letter of 3 May 2001. We bear in mind what the Tribunal said in Baguziene which was also a case dealing with the Communist Party in Lithuania. We observe that Dr Popovski has not been in the country since 1993. we have found the analysis of Dr Popovski's evidence contained in the Baguziene case very helpful and we have considered that within the context of her report of 3 May 2001.[14]Mr Middleton has conceded that there is in place a very soundly prepared and based constitution which does protect minorities and does observe the provisions of the Human Rights Convention. The essence of his argument, however, is that the constitution is not enforced at grass roots level and this permits police brutality directed at members of the Communist Party such as this appellant. This submission has to be considered within the context of the Court of Appeal judgment in the case of Horvath. On the basis of the documentation before us and also Mr Middleton's admissions, we are satisfied that there is in place a constitution and a judicial and criminal legal system which does ensure protection of the citizens of Lithuania. It does not discriminate against any minority groups and in particular members of the Communist Party. The US State Department Report makes it clear that as part of this system there is a proper judicial system, albeit a somewhat young one, and in the process of being developed, which does ensure impartial trials and proper legal representation.[15]We are satisfied that the government accepts that there is a degree of police brutality and we entirely accept Dr Popovski's statement that this arises out of prejudice against what Lithuanians endured under the previous Soviet regime. However, we are also satisfied that the government has taken steps to ensure that there is proper discipline of these officers exceeding their powers and perpetrating brutality upon detainees. We fully accept that the system cannot be flawless as thing are at the moment in Lithuania i.e. democracy emerging after many years of Communist rule. But we are totally satisfied that what acts of brutality are perpetrated are not condoned by the authorities and that proper systems are in place to obtain redress against the perpetrators.[16]We fully accept that, largely arising out of Dr Popovski's comments, individual policemen might well prove to be vindictive against the appellant were he to be taken into custody by reason of his Communist allegiance, but these are transgressions by individuals, contrary to any codes of discipline issued by the police or Ministry of Interior and are capable of redress.[17]Arising out of this finding it follows that the appellant, although he may find prison conditions poor and acts of brutality perpetrated against him, will be no worse than any other prisoner detained for any ordinary criminal offence for which he has been sentenced. The system has clearly got many imperfections, not least of which is the conduct of the police towards prisoners. We are not satisfied that the appellant would suffer more adverse conditions and greater brutality by virtue of his membership of the Communist Party and that such action would be condoned by the authorities and that he would not have any form of redress were he to be singled out from amongst any fellow prisoners.[18]The appeal is accordingly dismissed. M W RAPINET (VICE PRESIDENT)

Cited in 9 later judgments