AS (Sufficiency of Protection) Lithuania [2002] UKIAT 02843 (19 July 2002) [2002] UKIAT 02843

UKIAT
AS (Sufficiency of Protection) Lithuania [2002] UKIAT 02843 (19 July 2002)
[2002] UKIAT 02843 · 2002-07-19
[1]The Secretary of State appeals against a decision of an Adjudicator, Mr J L Guest, which was given on 12 March 2002. In it he dismissed an asylum claim by the Respondent who is a citizen of Lithuania, but allowed her claim under the European Convention on Human Rights, finding that there was a real risk that to send her back to Lithuania would expose her to inhuman treatment which breached Article 3. He also decided that there was a real risk that she would suffer death and so there would be a breach of Article 2. That finding has not been supported by Ms Stulin who has said all that could possibly be said on behalf of this Respondent. This is a case in which she submits that Article 3 was properly regarded as being material in the circumstances of this case.[2]The Respondent and her husband ran a transport business in Lithuania. They unfortunately attracted the attention of the local criminal organisation known as the Mafia and in the 1990s they began to have to pay substantial sums by way of protection money. She says that they did approach the police when the demands became more extortionate but were told that there were no such gangs in Lithuania and that the threat should not be taken seriously. The Respondent said that shortly after she received a threatening telephone conversation indicating that they should not go to the police again otherwise there would be dire consequences for her as well as for her family. Demands were made in 1997 that as well as paying protection money they should transport unspecified goods between Russia and Lithuania. Those goods were clearly forbidden goods of one sort or another. Again they were more than concerned about this and they refused to accede to this demand. This led to her husband being abducted on the way home from the garage, taken to some local woods and beaten, causing him some really serious injuries. As a result he went to see a doctor and took the doctor's report to the police but the police said they could do nothing because there were no witnesses. The threats continued.[3]They were concerned about their family and their daughter was taken out of school but in February 1998 came the incident which really led to the respondent leaving Lithuania. She was stopped by what appeared to be a police car, she was accused of being drunk and told to get into a police minibus to be breathalysed. Once she got into the minibus she was attacked by three men in plain clothes. They then drove her to a building site where she was handcuffed and then raped. Although she did not say this in her statement, or in the course of any interview, when she gave evidence before the Adjudicator she said that in the course of the rape the men had referred to the non-payment of the protection money and the refusal to carry the goods to and from Russia. Accordingly there was on the face of it a connection between the two and the rape was as a result of her failure to cooperate with the demands of the Mafia. She immediately left Lithuania and tried to enter the United Kingdom. She was refused leave to enter, although she did not then claim asylum. Having been so refused she returned to France, contacted her husband, and went back to Lithuania and on the Monday they flew to the United Kingdom. On their arrival her husband claimed asylum with her and the children as dependants. His claim has subsequently been rejected and his appeal against that rejection has been dismissed. It was said before the Adjudicator that he was thoroughly badly advised. He did not give evidence in his appeal and it would seem he never sought to appeal against the dismissal of his appeal. The Adjudicator stated that in those circumstances, although he had heard no evidence from the husband, he was relying on observations of the Respondent and a statement from the Respondent's present representatives that these particular individuals who were advising him took large sums of money off the husband and did nothing positive for him. The Adjudicator concluded that he felt forced to regard the fact that the husband had lost his appeal as unsurprising and was no guide to him in determining his wife's appeal.[4]It is our view that the Adjudicator was wrong to make a positive finding from the material that was before him. There was simply not enough information about the nature of the husband's appeal and the circumstances in which it was heard. On the other hand it is fair to say that the Adjudicator could not be faulted for treating it as something that was neutral in all the circumstances. He did express some surprise that the husband had not given evidence. That was a surprise which we share. Nonetheless he took the view that there was an explanation for it and he did not use it against the Respondent. Overall the Adjudicator believed what the Respondent had told him.[5]The grounds of appeal which have been relied on by the Presenting Officer include a suggestion that the Adjudicator was wrong to regard the appellant as being in a traumatised state and that that explained why she tried to come here immediately after the rape and then returned to collect her husband and family. It is said that that was contrary to the evidence in the report of the Consultant Psychiatrist (Dr Steadman), who had found, when he examined the Respondent, that she demonstrated some loss of concentration but was otherwise relatively cognitively intact. That is a bad point because the Adjudicator was considering her state at the time that she left to come to this country and he accepted her account that she was traumatised by what had happened to her. Indeed it would be altogether surprising if a victim of an unpleasant rape such as is described was not traumatised by what had happened to her and what the Consultant Psychiatrist may have found later is nothing to the point. A further ground relied on was that the Adjudicator erred in finding that involvement in the transport industry in Lithuania was liable to lead to adverse attention from criminals. That was based upon the Adjudicator's assertion that it would help that the Respondent was involved in the transport business because the Mafia would be interested in having someone who was able to make journeys to and from Russia. Whether that is a good point or not so good we do not need to determine, but we take the view that the Adjudicator was entitled to reach that conclusion as a matter of common sense. Overall we do not think that it would be right for us to go behind the Adjudicator's conclusions of fact. As is well known, the Tribunal, although of course it is able to review facts, will not usually overturn or reject an Adjudicator's findings of fact unless persuaded that they are clearly wrong or that there was no evidence or insufficient evidence to justify them. That we might not ourselves have reached the same conclusions on the evidence that we have seen is not the point. Accordingly we approach this case on the basis of the Adjudicator's findings.[6]The objective evidence about the situation in Lithuania makes it clear that there is still, and has since Lithuania achieved its independence from the Soviet Union, been a real problem in relation to organised crime. It is something that has been referred to in the succession of United States reports as the Adjudicator points out. But the Government is well aware of the difficulties and is taking steps to try to do something about it. Those steps are not yet always successful. We have before us, produced on behalf of the Respondent, a report from Dr Popovski. Dr Popovski, as we know, has given evidence in a case involving the Baltic States and has a considerable expertise in that area. Dr Popovski refers to the United States Reports indicating that district police inspectors are the most negligent and that the local Mafia would indeed use all means to reach the end that they desire. Furthermore there has been a connection, certainly a suspicion of a connection, between the police and Mafia criminal elements and undoubtedly police corruption has been and to some extent still is, a problem. But her conclusion is this:
"What is clear from this summary is that, firstly, there has been a serious problem with organised crime and that it still exists despite all the efforts to control it. Secondly, it is also clear that the Lithuanian Government realised that its own effort in fighting crime and corruption in different sectors of economy has not been enough and acknowledged that it needs support from other countries in fighting them. Thirdly, that there have also been problems with enforcing laws in relation to police corruption. This is also confirmed by the US State Department Reports for 1997 through to 2000 that 'the Government is making some progress in bringing police corruption under control'. In the same report for 1996 it was argued that 'the police corruption is on the rise'. In January 1999 the Lithuanian Prime Minister, declared a 'war on organised crime' (after the Chief-Prosecutor in the northern town of Panavezys was murdered). He also added that the Government would make an effort to pass laws making it easier to arrest and convict organised crime bosses. He promised that the Government spending on law enforcement would be increased. The Parliament of the Republic of Lithuania issued on 10 June 2000 the Resolution concerning the programme of the Government under the heading Domestic Policy: 1. Reform of Legal System and Law and Order special emphasis is given to 'measures and means for fighting organised crime and corruption: a) improvement of legal basis…b) reorganisation of the law enforcement institutions…and c)improvements of the courts' work."
[7]We do not doubt that these efforts have not yet proved always to be successful. Criminals and particularly well organised criminals, will continue to function even in a country which has a well organised and effective police force. Protection rackets exist in this country and it is often difficult to persuade witnesses to come forward to give evidence in order to convict those who are responsible. Of course if the police themselves are corrupt and are involved it will make it the more difficult to ensure that such offences are not only detected but are dealt with. The Adjudicator was most impressed with the fact that on economic grounds in 1999 more than twelve hundred policemen had been made redundant and he observed that with crime soaring the decision to reduce police numbers indicated to him the opposite of sufficiency of protection. That is hardly a balanced conclusion. It is not even necessarily a pointer in the direction of lack of sufficiency. The reality is that we have to approach this case on the basis of the House of Lords' decision in Horvath . There is on all the evidence before us quite clearly an effort being made by the authorities in Lithuania to deal with the problem of organised crime. There is therefore a willingness to provide the necessary protection. It may be said that that willingness does not always exist at the lower level with local police. It is not entirely clear at what level the respondent and her husband made their complaints, but if they were getting nowhere in their local police station or with the lower ranks then surely they should have gone higher.[8]So far as ability is concerned, as Horvath makes plain, it is not possible to guarantee protection. What has to exist is a system which is in place and which is able generally to deal with crime and to investigate and to try to bring to justice those who have committed the crimes. Police are always going to be hampered in relation to organised crime by the difficulty in obtaining witnesses but in our judgment on the material before us it is quite impossible to say that in Lithuania as a whole there is such a breakdown of effective protection against organised crime that anyone who is affected by it cannot be returned to Lithuania. Of course we appreciate that we have to look at the facts of the individual case and there may always be cases whose circumstances show that it is indeed unsafe to return a particular individual. The respondent has undoubtedly suffered much as a result of what happened to her and even if one accepts as the Adjudicator did that the rape was connected with the protection racket, still in our judgment we cannot say and it is not established, that there is a failure of the degree of protection that Horvath requires to be in place. The principles of Horvath are now well established and in our judgment this case falls clearly within that guidance. In all those circumstances this appeal must be allowed. MR JUSTICE COLLINS