XM (Albania, Victims of extortion, Sufficiency of protection) Albania [2004] UKIAT 00178 (02 July 2004) [2004] UKIAT 00178

UKIAT
XM (Albania, Victims of extortion, Sufficiency of protection) Albania [2004] UKIAT 00178 (02 July 2004)
[2004] UKIAT 00178 · 2004-07-02
[1]APPEAL No. XM (Albania, Victims of extortion, Sufficiency of protection.) Albania [2004] UKIAT 00178 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 21 May 2004 Date Determination notified: 2 July 2004 Before Mr Richard Chalkley, Vice President Ms V S Street Between XM APPELLANT and Secretary of State for the Home Department RESPONDENT Mr A Deve, of Refugee Legal Centre, appeared on behalf of the appellant and Miss J Sigley, a Senior Home Office Presenting Officer, appeared on behalf of the respondent DETERMINATION AND REASONS The Appellant is a citizen of Albania. He was born on 22 February 1963 and arrived in the United Kingdom on 2 June 2002. He applied for asylum on 4 July 2002.[2]The Appellant appeals, with Leave of the Tribunal, against the decision of an Adjudicator, Mrs R Woodhouse, who dismissed his Appeal against the decision of the Respondent, taken on 2 August 2002, to refuse to grant Asylum.[3]This decision is being reported because of what we have to say about the availability of protection and its sufficiency, for victims of extortion.[4]The Adjudicator set out the basis for the Appellant's claim in paragraph 5 of her determination, as follows:- "The Appellant claims to have a well-founded fear of persecution in Albania from the Mafia because he reported them to the police after his daughter Viola, aged 15, was kidnapped by them on 22 April 2002. She was released on 26 April 2002. Having reported the kidnapping to the authorities, one of the two kidnappers was arrested before [the Appellant] left the country. As a result of reporting this gang which the Appellant claimed was linked with the Mafia, he received death threats and decided to leave Albania on 18 May 2002, obtaining visit visas to the United Kingdom on 28 May 2002 and he left on his own passport on 2 June 2002." There were three challenges to the Adjudicator's determination. The first ground was that the Adjudicator failed to properly consider the objective background evidence as to the sufficiency of protection available in Albania and failed to give any reason why the Appellant, as a former policeman, would be in a better position to obtain a sufficiency of protection. The second ground asserts that the Adjudicator gives no reason for rejecting the Appellant's account, that there was a link between the abduction of his niece and the abduction of his daughter, in the light of the Appellant's own evidence, which is supported by the expert evidence. The third ground was that the Adjudicator misdirected herself factually, in finding that the Appellant embellished his claim, by referring to the Mafia links for the first time in oral evidence, having already made reference to his fear of gangs and a specific reference to the Mafia having kidnapped his daughter and niece in answer to questions during his interview.[5]Mr Deve told us that he relied on the grounds. The Adjudicator rejected the Appellant's claim that there was a link to the Mafia, because the Adjudicator believed that the Appellant had only mentioned this at the hearing. However, in his statement at B2, he refers to the Mafia and specifically referred to the Mafia in answering the questions 46, 47 and 48 at his asylum interview. It is clear that he referred to the Mafia. Additionally, pointed out Mr. Deve, the Secretary of State's reasons for refusal letter also acknowledges that reference was made to the Mafia. There was simply no reason for the Adjudicator to find as she did at paragraph 91 of her determination and the flawed finding should be set aside.[6]The Adjudicator accepted most of what had happened to the Appellant and his daughter, but simply says that as a former policeman there would be a sufficiency of protection for him. According to the expert evidence before the Adjudicator, there is no sufficiency of protection. He referred us to the objective material and submitted that the appeal should be allowed to the extent that the Tribunal should direct it to be heard afresh by another Adjudicator other than Mrs R Woodhouse.[7]Ms. Sigley suggested that the Adjudicator's findings in relation to whether or not those who abducted the Appellant's daughter were members of a gang, or were part of the Mafia, were sustainable. In paragraphs 41, 42 and 43, the Adjudicator deals with the evidence in chief. At paragraph 53 the Adjudicator deals with evidence given by the Appellant during cross-examination. The appellant, in referring to a gang called the "Vengeance" gang, which he has previously heard of, had described one of the leaders of the "Vengeance" gang as being called "Koldaci". What troubled the Adjudicator was that the Appellant had never previously mentioned the name of the gang, nor an individual member of it, before he gave evidence to the Adjudicator. The Adjudicator referred to a newspaper report in paragraph 79 and 80 of the determination. In paragraph 80, the Adjudicator notes that there is no reference in the newspaper report to a gang, or to a group, in addition to the two abductors, who are referred to. In paragraph 38 of the determination, the Adjudicator says that she concluded that the Appellant's account of this particular armed gang was an embellishment to his original claim. It was wrong to say that there were no reasons for the Adjudicator's findings in paragraph 91, but she did not believe the Appellant's evidence, that those who abducted his daughter were members of the gang, or that they were part of the Mafia group.[8]The Adjudicator did not place terribly much weight on what the Appellant had claimed he had been told by the Chief of Police. In any event, he simply suggested that, simply because the police may have implied that the Appellant ought to leave his home, does not mean that the police were either unable or unwilling to protect him. Someone suffering a similar threat in the United Kingdom might be advised by the authorities to leave home, but that did not mean that the authorities were either unable, or unwilling to offer protection. The Adjudicator had dismissed the claim made by the appellant, that a letter was written by the Ministry of Public Order to the British Embassy on behalf of the Appellant in support of his application for a visa; that finding, reminded Ms. Sigley, had not been challenged. 9. We were asked to note that the police had arrested one kidnapper and had been able to identify the other. The Appellant was, suggested Ms. Sigley, given support and protection. The Adjudicator's finding, that the Appellant would have a sufficiency of protection in Albania, was, Ms. Sigley urged, sustainable. According to the Appellant's expert, no one has a sufficiency of protection in Albania. The "expert" is a "D. Phil." research student. At the foot of page 1 of his report, he refers to members of the special police commander unit, who always wear masks and this, suggests the expert is, "… so as to protect the unit from reprisals ". The report goes on to suggest that should their identities be known, it is widely acknowledged that they would have been assassinated. The expert says, " The Government has no way to offer adequate protection to its own elite police units, let alone regular police officers or witnesses." Ms Sigley asked us to note that members of the United Kingdom Special Forces and police units, when on active duty, often wear masks simply to protect their identity. It is not suggested that the reason is to protect them from assassination, neither is it suggested that the United Kingdom Government is not able to offer protection to them. She submitted that the "expert" report had wholly ignored the help and assistance given by the Albanian Authorities to this Appellant, before he left Albania. She asked us to note the difference between the comments on trafficking in persons in the US State Department Report for 2002, and those for 2003. In 2003, at the end of paragraph 4 on the first page, the US State Department reported that, "… trafficking in persons remained a problem, which the Government took steps to addres s ." (our emphasis) It was clear, the Presenting Officer submitted, that there have been improvements in the time between the dates of the two reports. She asked us to note paragraphs 6.24 to 6.49 of the CIPU Report. The problem of corruption amongst Police officers is being tackled by the Government of Albania. Prosecutions are taking place against corrupt officers and against trafficking and trafficking has decreased. The objective material does support the Adjudicator's findings. She invited us to dismiss the Appeal.[10]By way of response, Mr Deve suggested that in the absence of any witness protection programme in Albania, it was difficult to see where the Appellant could have gone to and where he would have been safe. Paragraph 6.46 of the CIPU shows that any witness protection programme there is in existence in Albania, is in its fledgling state and it is far too early today, to assume that an effective witness programme is in place. Whatever is in place now, is not effective enough for this Appellant. He invited the Tribunal to allow the Appeal.[11]We reserved our determination. We have concluded that we must dismiss this Appeal.[12]Dealing first with the assertion that the Adjudicator misdirected herself factually in finding that the Appellant embellished his claim by referring to the Mafia links for the first time in oral evidence, we find that the Adjudicator did not say this. What she said in paragraph 91 was:
"…..while I have in the main found the Appellant's Account of his experiences to be genuine, I do not believe his evidence that those who abducted his daughters were members of a gang or that they were part of the Mafia group. I do not believe that there was a connection between those who abducted his niece and this abduction. I do not accept the Appellant's evidence of a connection between those who abducted his daughter with the individual he named as part of a greater gang as this information came only in his oral evidence and I concluded that it was a further embellishment of his claim."
[13]The challenge to this paragraph 91 in the second ground of appeal, asserts that the Adjudicator gives no reasons for rejecting the Appellant's account that there was a link between the abduction of his niece and the abduction of his daughter, in the light of the Appellant's own evidence, which was supported by the expert evidence. What the Adjudicator found in Paragraph 79 and 80 was this:- "79. The Article does not name the Appellant's family however it describes a man ending up in handcuffs after defrauding his neighbour for prostitution and continues by saying:
"Mentor Daci was arrested from police agents of Commissariat Number 2 in Tirana. His arrest is done after a denunciation from the parents of a 15 year old girl who has been (eligible) from Mentor Daci and his collaborator Xhelil Koldoshi. These two people have tried to traffick the teenager for prostitution. Immediately after the denunciation to the police forces of Sariet Number 2 are set and have arrested the 33 year old Daci. Meanwhile Xhelil Koldoshi is declared a wanted person from the police because his arrest was not made possible". 80. There is no reference in this Article to a gang or a group in addition to the two abductors and the Account records vigorous action by the Police, the arrest and the detention of one of these men and the pursuit of the other."
[14]In Paragraph 83 the Adjudicator goes on to find:- "The Appellant has asserted that these two individuals named in the report are part of a greater gang led by a person who abducted his niece. In his oral evidence he called it the Vengeance Gang which the Appellant had not previously stated and I concluded that his account of this particular armed gang was an embellishment to his original claims.[15]It is clear that in paragraph 91, the Adjudicator did give a reason for not believing the Appellant's evidence that those who abducted his daughters were members of a gang, or that there were part of the Mafia group. It was because the Appellant's evidence, of a connection between those who abducted his daughter and the individual he named as part of a greater gang, only came out during his oral evidence. She concluded that it was a further embellishment of his claim. At paragraph 53, the Adjudicator records the fact that during cross examination, the Appellant had said that as a Police Officer he had heard of the "Vengeance" gang previously – one of the leaders was called Koldaci, the same person who abducted his niece. He knew him because he lived nearby – although he had never spoken to him.[16]So far as the first ground is concerned, we reminded ourselves of the speech of Lord Clyde, at Page 510 E-H, in the House of Lords decision in Horvath [2001] 1AC . Where Lord Clyde said:- "I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolute guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 . The European Court of Human Rights recognised that Account should be taken of the operational Responsibilities and constraints on the provision of police protection and accordingly the obligation to protect must no be so interpreted as to impose an impossible or disproportionate burden upon the Authorities. At the least, as is noted in condition (iii) to Rule 344 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of acting contrary to the purposes, which the Convention requires to have protected. More importantly, there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."[17]We have very carefully read the expert Report of Mr John Davies, a D Phil research student. We were unimpressed by it. Unfortunately, he gives very little detail of his previous experience, although we note that he has been a regular speaker and presenter on "trafficking harm" and has been invited to present (present what is not made clear) to such agencies as the UNDP, Unicef, US Aid, Norad, ADB, as well as at a number of international conferences on trafficking. He has lived and worked in the Balkans region for 10 years and was chief technical advisor to the Government of Bangladesh's largest anti-trafficking project and is a Consultant to a number of Agencies seeking to reduce trafficking harm. It is not clear whether he has even been to Albania, but, for the purposes of this decision, we assume that he has. We have noted that he believes that the Appellant's daughter and her family, "… will continue to experience harassment and threats in Albania until they withdraw their complaints against the traffickers involved in her forcible kidnap. Therefore they will likely suffer an escalating campaign of violence. The Albanian Government has no capacity to protect them from such a sustained campaign ." He is also of the opinion that the capacity of the Albanian police to deal with violence against women is " extremely limited ". He goes on to say:- "..it could be considered that the Albanian police have been negligent in their duty of care towards such women as Ms Muca. " We have considered his report together with the Country Information and Policy Unit assessment. We were provided with the April 2004 assessment.[18]It shows that in November 1998, the Albanian electorate approved a new constitution, which came into force 6 days later. The improved and more detailed version of the 1993 Law of Human Rights became an integral part of the constitution. It provides for the Office of an Ombudsman, working for more effective implementation on Human Rights. The constitution makes the clear distinction between the roles of the President, National Government, Regional Government and the Judiciary (Paragraph 5.1 of the CIPU). Albania is a Parliamentary Republic – the fundamental political economic and social rights and freedoms of Albanian citizens are guaranteed under the Constitution (5.2). The Constitution provides for an independent judiciary, but according to the European Commission, the Albanian judicial system remains weak. The infrastructure is generally poor; rulings are not always executed; magistrates, prosecutors, lawyers and administrative staff are not yet sufficiently trained. (5.16.) Corruption remains widespread and affects both judges and prosecutors. During 2002, Parliament, undertook a number of legal initiatives aimed at improving the functioning of the judicial system. A new law was adopted in June 2002 and the criminal procedures code was amended with the aim of enhancing the fight against corruption and organised code. During 2002, Albania ratified a number of international instruments, notably the statute of Rome on the International Criminal Court, the Council of Europe (CoE) Convention on Cyber-Crime and additional Protocols on Mutual Juridical Assistance (5.18).[19]The Albanian Police Forces come under the general directorate of Police in the Ministry of Public Order and are divided into 4 Departments, Public Order Police, Crime Police, Traffic Police and Special Forces. In addition, the Judicial Police are responsible for investigating crime under the direction of a prosecutor's Office (5.30). Local Police Units report to the Ministry of Public Order and are responsible, principally, for internal security. Since September 2000, Police Officers have received training on issues of gender and been provided with guidance under International Conventions and domestic law, on the treatment of women who are the victims of domestic violence and trafficking. An Advisory Board consulted in the development of the course and included members from local NGOs and a Human Rights specialist from UNHCR. It has become part of the International Criminal Investigative Training Assistance Programme, sponsored by the United States State Department, which trains supervisory and mid level manager police officers (5.32). Most of the country's 13,000 member Police Force remained largely untrained, despite assistance received from foreign Governments. Foreign Governments continued Police Training Programmes aimed at improving technical expertise, operational procedures and respect for Human Rights. The Albanian National Police Office of Internal Control received authority to review all police appointments and pursued investigations leading to the conviction of 16 police officials, and the dismissal of 172, for various degrees of misconduct.[20]According to the Albanian Helsinki Committee, police violence could largely be attributed to the lack of adequate training, the tradition of police brutality, as well as to insufficient internal supervision. On the positive side, the AHC noted that state bodies have recently been more active in reacting to reports of police violence and in condemning them (5.34).[21]In February 1999, the Albanian Government ratified enabling legislation for a "Peoples' Advocate" (Ombudsman) and elected the first Ombudsman in February 2002. The Ombudsman investigates inappropriate, inadequate, or illegal actions on the part of Government. During 2002, the Ombudsman Office administered about 4,600 complaints, representing nearly 70% increase over 2001. The Peoples' Advocate was reported to have the full backing of the Government and had authorised access to information from all agencies.[22]Amnesty International noted in May 2001, that there has been a growth in civil society in Albania, including a range of non-governmental organisations with expertise in many of the problems facing the country, including the field of Human Rights. (6.5).[23]The US State Department Report on Human Trafficking 2003, noted that the Government of Albania does not meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. In the past year, the Government improved its law enforcement efforts, particularly in co-operation with Italy. Police significantly reduced clandestine speedboat traffic across the Adriatic, and the number of foreign women transited through Albania for Western destinations decreased measurably. Nevertheless, corruption and lack of protection for vulnerable children, remained problematic. It further noted that the Government Inter-Ministerial Commission on Human trafficking co-ordinates its National Action Plan, now in its second phase of completion. Part of this plan includes the appointment of a Minister of State who serves as the country's anti-trafficking Co-ordinator. In this role, the Minister works with various Ministries, NGO's and the International Community to redress trafficking in Albania. The Ministry of Education participated with NGO's to train teachers and to produce and disseminate information in schools on the dangers and mechanics of human trafficking. A series of 12 programmes on Public Awareness was broadcast on television in 2002. The Ministry of Public Order completed a significant study, indicating that more than 5,000 Albanian women and girls were trafficked into prostitution in the last decade. The report noted that the Chief of the Ministry of Public Order anti-trafficking sector, has a unit in each prefecture and recently created a Delta Force to enhance operations. Prosecution of traffickers has increased in the past year, as did efforts to punish corrupt Government officials for involvement in trafficking however, corruption is a major problem with little follow through on most investigations. The Government continues to show inadequate conviction and sentencing rates, with most defendants released for lack of evidence, or ultimately charged with a lesser crime. The organised crime sector and the Office of Internal Control also conducts civic anti-trafficking actions. 24. Unicef, in their 2003 Report, noted that, " The recent actions of the Albanian Government had as huge impact in lowering the numbers of trafficking victims transited through Albania in the previous year."[25]At 4.46 of the CIPU Report, we noted that through its nationwide anti-trafficking units, police refer victims to victim assistance and protection centres through Albania. These centres provide re-integration and education for domestic victims and repatriation for foreign victims. Phase II of the National Action Plan mandates the creation of a Witness Protection Programme that, at the time of the report, was described as currently lacking. In the absence of a Witness Protection Programme, the Government has taken limited measures to protect witnesses, mostly ad hoc and relying on NGOs and Foreign Governments. With funding by IOM, six Police Commissariats opened temporary witness protection shelters in 2003. The Government hosted the third Regional Ministerial forum that produced a regional Government declaration on the legislation of victim status in destination countries. We noted from paragraph 6.47 of the CIPU, that a bill on Witness Protection is said to be pending in the Albanian Embassy. We also noted that OSCE was responsible for setting up, in 2002, the Victims Assistance Project to provide legal advice and appropriate counselling for victims of trafficking who are repatriated to Albania. Albania's Serious Crime Court was inaugurated on 1 January this year. It provides a parallel structure to the ordinary Court system and deals specifically with criminal offences carrying a minimum sentence of 15 years.[26]Finally, we noted paragraphs 6.125 to 6.129 of the CIPU Report, dealing with organised crime and corruption. The Human Rights Watch Report for 2001 noted that despite the highly partisan political atmosphere, the Albanian Government has made some sincere efforts since 2000, to confront Official corruption and to establish public order in the country. The Prime Minister has re-affirmed that the police belong to the state, not to political parties and that it is the duty of the Albanian Government, the governing coalition, the Opposition and of all society, to support the police, so that they are more successful in their fight against crime in any form it appears. The then Minister for public order said that, clearing the police and other structures of the Public Order Ministry from the corrupted and incriminated elements remains one of the priorities of the Government Programme. The Public Order Ministry has drafted a strategy to uncover and send to Court such elements. According to paragraph 6.127 of the CIPU Report, Freedom House, in their report, noted that in its 2002 anti-corruption plan, the Albanian Government identified the fight against corruption as a top priority. The objective being to reduce corruption to a point where it no longer undermines what Albania tries to achieve. While Albania has strengthened its anti-corruption legal framework and ratified relevant international agreements, the Government acknowledged that implementing and enforcing legislation remains a challenge.[27]We have carefully examined the objective material in the Appellant's bundle and note that, in June 2003, a Memorandum of Understanding on the establishment of the task force on Witness Protection was signed by a member of the Albanian Ministries and International Agencies operating in the country. The Albanian Minister of State recognised that witness testimony was crucial to the fight against trafficking and organised crime. In May 2002, an International Task Force chaired by the OSCE presence in Albania was established, to handle witness protection situations, until a legislative framework was put in place.[28]Mr Deve suggested that it is too early today to assume that an effective witness programme is in place. However, this ignores the creation of the International Task Force, which was specifically designed to deal with the situation on a temporary basis, until legislation was enacted.[29]Unfortunately a large part of the objective material in the Appellant's bundle was old and pre-dated the April 2004 CIPU Report. We have, however read it, but feel better able to place much greater weight on the more recent CIPU Assessment, which draws of a wide variety of objective material.[30]Our consideration of all the objective material leads us to believe that the Government of Albania is both able and willing to provide adequate protection for the Appellant. The authorities responded when the Appellant sought their assistance following his daughter's kidnap and they assisted in securing her release and in arresting one of the kidnappers. The other kidnapper has been identified. The adjudicator was correct to find, on the evidence before her, that there was no evidence that these two individuals were part of a larger gang, or that they were in any way connected to the Mafia. Subsequently, following the shooting at the Appellant's home, the police responded when the Appellant called them for assistance. We believe that on his return to Albania they will continue to be able and willing to offer him and his family members protection, if it is thought that it is necessary. 31. For all these reasons we have concluded that we must dismiss this Appeal. Appellant's appeal dismissed. Richard Chalkley Vice President