IMMIGRATION APPEAL TRIBUNAL

Transcription

1 ar SG (Article 3-Military Service-Detention) Algeria [2005] UKIAT 0003 IMMIGRATION APPEAL TRIBUNAL Date of Hearing : 7 January 2005 Date Determination notified:... st February 2005 Before: Mr G F Denson Mr C Thursby Secretary of State for the Home Department APPELLANT and RESPONDENT Representation For the appellant/sshd : Ms A Rehman, Home Office Presenting Officer For the respondent/claimant: Mr B J Davis, Counsel, instructed by Messrs Darbys Mallam Lewis DETERMINATION AND REASONS. The Secretary of State appeals against a decision of an Adjudicator, Mr J.P. Griffin, following a hearing at Hatton Cross on 7 May 2002 refusing the claimant's asylum appeal against a decision of the Secretary of State dated 23 August 200 refusing leave to enter the United Kingdom after refusal of asylum, however allowing the claimant's appeal under Article 3 of the ECHR. 2. The Secretary of State appeals with leave granted by the Tribunal on 4 July 2002 in relation to the claimant's Article 3 claim. The respondent has not in this instance submitted a respondent s notice. 3. The Tribunal granted leave on the basis that the Adjudicator had erred in his findings with regard to the objective evidence on Algeria in relation to the treatment and punishment of

2 deserters from armed forces as to whether any sentence that the claimant would receive would be disproportionate. 4. The Secretary of State s appeal was determined by the Tribunal 2 October 2003 subsequent to a hearing on 30 May 2003, however, the claimant appealed against such determination and by consent of the Court of Appeal the matter was to be remitted to the Tribunal by virtue of an Order dated 2 October Since the date of the claimant's original appeal before the Adjudicator, he has produced an extract of a judgment showing that under paragraph 256 of the Military Code of Algeria he has been tried in absentia for desertion in a state of emergency receiving a penalty of ten years of actual imprisonment. 6. Article 256 of the Algerian Penal Code reads as follows: All military personnel guilty of desertion within the country in peacetime shall be punished with a term of six months to five years imprisonment. If desertion occurs in wartime or in a territory in which a state of siege or state of emergency has been declared, the term shall be between two years and ten years. In all cases, a discharge may be pronounced if the guilty party is an officer. 7. The claimant gave evidence before the Adjudicator as to how he was a member of the Algerian air force, having joined as a career officer and after completing training in the United Kingdom between 996 he returned to Algerian and was based in the air force at Boufarik. 8. The appellant gave an account of how, in late April whilst flying a plane equipped as an ambulance, he overheard instructions to military personnel flying helicopters from what appeared to be superior officers to open fire on Algerian troops who were engaged in an operation against terrorists in the area. On return to his base he was grounded for a week, was not placed in detention but was segregated from his unit. The claimant heard that forty soldiers had been killed by terrorist in the attack and was concerted that his military comrades were killed by the Algerian forces. The military authorities accused the claimant of spreading word of what he had had heard inadvertently and that he would be court

3 martialled. The appellant learned of the disappearance of one of the officers involved in the indent, he became concerned for his own safety and ultimately made plans to leave the country which he did so, arriving in the United Kingdom on 3 May 2000, claiming asylum on 25 May The claimant left the United Kingdom on 3 March 200 and went to Holland with the intention of flying on to Canada to claim asylum, he was detained by the Dutch authorities and sent back to the United Kingdom on 8 May 200 whereupon he renewed his claim for asylum. 0. The claimant has since leaving Algeria been tried in his absence and produced a copy of the extract of judgment as referred to above in relation to his desertion.. Miss Rehman submitted that the grounds of appeal clearly set out the errors made by the Adjudicator in finding that the claimant would have his rights under Article 3 of the ECHR breached upon his return as the Adjudicator s findings on credibility were not consistent with allowing such a claim. Furthermore, the Adjudicator's determination failed to consider the objective evidence in the CIPU Report before him when making a finding that it would be disproportionate in all the circumstances to return the claimant to Algeria. 2. Miss Rehman submitted that the extract of the judgment was not in dispute, and therefore the ground of appeal in relation to whether or not Algeria was in a current state of emergency which equated to a war time situation was not at issue before the Tribunal at the hearing today. 3. Miss Rehman submitted that the Adjudicator made clear and precise adverse credibility findings and quite extensive ones as contained in paragraphs 24, 25 and 26 of the determination, and in effect did not believe the appellant s account concerning the events that led up to his leaving Algeria. However, he did find that the claimant was an airforce officer and accepted that he had left Algeria without permissions and was consequently therefore a deserter. She submitted that there was no evidence to demonstrate that the claimant had shown that he had a profile that the authorities would be interested in him other than as a deserter. He had not engaged in any activities against the state and would not be subject to any adverse punishment as a result of his desertion other than as someone who had deserted the armed forces, albeit during a period of a state of emergency which equated to wartime.

4 4. Miss Rehman submitted that the burden was on the claimant to show that any punishment would be excessive. The CIPU Report of April 2004 in paragraph 5.96 shows that desertion within the country during wartime is liable to two to ten years imprisonment. Based on this the Adjudicator failed to establish that this would be disproportionate as he had stated the case to be in paragraph 29 of his determination. It was not for the Adjudicator to consider the appropriateness of the sentence. However, he must find that the sentence would be excessive, disproportionate or a breach of Article 3. The Adjudicator had accepted that prison conditions met international standards and had improved over the year and the current CIPU report states the following in relation to deserters: 5.50 UNHCR have stated that they are not aware of the authorities using excessive or inhumane or discriminatory treatment in the case of deserters and draft evaders After serving their prison sentence, deserters still have to fulfil the rest of their interrupted time in military service A country visit report of 999 stated that deserters were dealt with more severely than draft evaders and it is not known how the authorities were presently deciding deserters cases. Another recent country report of 2003 stated that as conscripts are used in conflicts with the armed opposition, the desertion rate was high, and deserters were punished in accordance with military legislation However, at a country information seminar in June 200, organised by UNHCR/ACCORD one of the speakers considered that deserters were at risk of torture on return as they would be considered to have broken the law of silences regarding past atrocities by security forces. 5. Miss Rehman submitted that there was no evidence that the authorities would have any information that the claimant had broken any law of silence. In any event, the Adjudicator had found him not to be credible on this point. In the claimant's bundle of objective material a report from Dr Joffe (pages 46

5 to 52) stated at page 49 therefof, the details of the actual sentence that the claimant would receive and in it Dr Joffe stated: In any case, Mr Gaid s situation is not merely one of desertion or absence without leave. He had been warned that he would face court martial although the charges have not been specified... In other words the claimant's oppressions arise not merely because of his desertion but because of what may happen to him as a result of what he accidentally discovered. His situation is such that exceptional circumstances would certainly apply to him, quite apart from the sentence of up to ten years in prison that he formally faces. 6. As the Adjudicator did not find the claimant's story credible, then the details outlined in Mr Joffe s report did not apply. Before the Adjudicator there were no exceptional circumstances other than the claimant was a deserter. 7. Miss Rehman went on to submit the CIPU Report before the Adjudicator, which he accepted, showed that prisons met international standards and this had not changed. There was no evidence that the claimant would be treated with harshness, whilst Dr Joffe said this would be the case this was due to the claimant's story which the Adjudicator found not to be credible. 8. Dr Joffe in his report made reference to the claimant knowing Captain Haroune. However, the Adjudicator discounted any evidence in relation to therefore as contained in paragraph 20 of the determination and there was no evidence of the claimant's association with Captain Haroune that would be before the authorities in Algeria. 9. Miss Rehman submitted that there was no evidence that on return and subject to the penalties for desertion, the claimant would have his Article 3 rights breached. The Adjudicator had not established prison conditions would breach Article 3 or that the claimant would come the authorities attention over and above being that of a deserter. 20. Mr Davis submitted that the Adjudicator's determination was sustainable and sound, it was critically well argued and thorough. The objective evidence quite clearly showed that the claimant s Article 3 rights would be breached.

6 2. It is now common ground that the claimant would receive a ten year sentence and has in fact been tried in absentia and would receive such sentence., Mr Davis referred the Tribunal to paragraphs 5.05 to 5.08 of the current CIPU Report as outlined above and submitted that this showed that the appellant would be treated harshly on return. Furthermore, the report from the War Resistors International dated 30 June 998 (pp. 58 to 67 of the claimant's bundle) showed at page 6 that the sentence in wartime under Article 256 would be two to ten years imprisonment and that on page 6 of the same report: It has been reported that deserters and conscripts attempting to desert have been executed, and the army generals have even proceeded to execute family members of deserters, including parents, women, children and cousins in order to stop desertions. 22. Mr Davis submitted that as the claimant's brother has disappeared, this was in line with the objective material before the Tribunal. 23. Whilst it was accepted that general prisons conditions met international standards, Dr Joffe was a valuable expert and his report shows that the conditions in the military prison at Blida are said to be worse that in any Algerian prison except Serkedji prison in the centre of Algiers, with reports of disappearances having taken place. 24. Mr Davis submitted that the Secretary of State's submissions that there would be a differential approach in relation to the claimant's case by the authorities as against being a simple deserter or one who would be of interest to the military authorities was erroneous. He would receive equal treatment in the event. He further submitted that the Adjudicator's findings in Article 3 were correct, the claimant would be at real risk and any deserter given a ten years sentence is at real risk of treatment contrary to Article 3 and the Tribunal were asked to dismiss the appeal. 25. In addition to the section of the CIPU Report that have been referred to us by both representatives, we note the following provisions. Firstly as to prison conditions which report as follows: In 2004 prison conditions were reportedly spartan but generally met international standards. A country report by the Netherlands authorities dated January

7 2003 stated that Algeria had about 35,000 prisoners held in 23 penitentiary establishments under the Ministry of Justice. The prison in Algiers were Serkadjk, prison D.El Harrach and Berouagghia. The prisons at Batna was Tazoult. Problems reportedly arose from overcrowding rather than neglect. In 2002 there were riots in several prisons in protest against the prison conditions. These riots concluded several episodes of arson by prisoners and led to about fifty deaths and forty causalities The government has reportedly continued to improve prison conditions and undertaken to reform the prison system. Administering charge of prison reform was appointed in June In December 2003 Algeria accepted the recommendations of a UNDP programme at a conference in Algiers on measures to improve prisons conditions and to help prisoners integrate into society upon release. 26. The Tribunal also note the details in relation to the treatment of military service personnel which read as follows: 5.00 However, more recent reports state that absentees are not treated so harshly by the authorities as in the past. The Algerian authorities informed the Canadian Embassy in Algiers in March 999 that people suspected of being absent without leave are arrested by the police and immediately brought before a military tribunal which is free to decide the punishment for the individual, according to the law. They stated that absence without leave was not considered to be major issue by the Algerian authorities: those convicted of this offence were usually sent to their units to do their national service. 5.0 The same source quoted two Algerian human rights organisations the Observatoire Nationale des Droits de l Homme (ONDH), which was linked to the

8 state, and the Liegue Algerienne des Droits de l Homme (LADH). They stated that they had received no complaints regarding torture of deserters and draft evaders but these organisations also indicated that the situation today is considerably different from what it was in the 970s, when soldiers who were absent without leave might have been treated more harshly. 27. We find that the Adjudicator has made an error in relation to the assessment of the objective evidence before him in coming to the decision that the claimant would have his Article 3 rights breached upon return to Algeria. The objective material showed that the claimant would receive a prison sentence for his desertion and there was nothing before the Adjudicator to show that this would be disproportionate in all the circumstances and therefore his finding that if the appellant were to be returned to Algeria there would be a real risk he would suffer a breach of his protected rights under Article 3 is an error in law. The objective material showed that he would receive a prison sentence. The length of sentence as outlined in the objective material before the Adjudicator was not disproportionate in all the circumstances. As far as the current situation is concerned, we note the objective evidence that is before us and the submissions that had been made by both representatives. We accept the argument put forward by Miss Rehman that there is in essence a difference between the claimant being merely treated as a deserter per se and a deserter who would be considered to have broken the law of silence regarding past atrocities by the security forces. The CIPU report in paragraph 5.08 notes that one of the speakers at a conference differentiated the second category of deserters to the extent that they would be at risk of torture on return. The Adjudicator made clear findings of fact which are entirely sustainable concerning the claimant's account that led to him leaving the army, but disbelieved such account and therefore as far as the authorities are concerned, the claimant is merely someone who has deserted his post during the period of an emergency and has subsequently been sentenced to ten years in absentia for such offence. 28. The claimant has not received a disproportionate sentence, all the objective material both before the Adjudicator and the court today shows clearly it is within the bounds of the Algerian Penal Code, this being the case, no element of disproportion can be showed as against this particular claimant.

9 29. The tenor of the objective material shows that prison conditions have improved over the years. Whilst it is appreciated that the claimant will serve his sentence in a military prison, the objective evidence before the Tribunal does not show that the conditions in such prison cross the high threshold to amount to a breach of the claimant's Article 3 rights. 30. As regards the treatment of deserters by the authorities is concerned, we note Mr Davis submissions in relation to the report from War Resistors International, and in particular the paragraph contained in page 6. However, this report was dated 30 June 998, some 6½ years ago and the current objective material show that, absentees are not treated so harshly by the authorities as in the past (CIPU 5.00). The human rights organisations in Algeria have stated that they have received no complaints regarding torture of deserters and draft evaders. Both organisations indicate the situation today is considerably different from what is was in the 970s, when soldiers who were absent without leave might have been treated more harshly (5.0). Further, the CIPU Report shows that the UNHCR are not aware of the authorities using excessive or inhumane or discriminatory treatment in the case of deserters or draft evaders. Deserters were punished in accordance with military legislation (5.05 and 5.05). 3. The objective material does not show per se that prison conditions in military prisons are harsh to the extreme that they cross the high threshold to amount to a breach of the claimant's Article 3 rights. There is nothing to show that the claimant will be singled out and treated any differently from a rank and file deserter and there is no evidence that upon his return he will be considered to have broken the law of silence regarding the past atrocities by the security forces. The Adjudicator made a clear findings of fact concerning the appellant's account in relation to these matters and disbelieved him, giving good and cogent reasons why he did so, which the Tribunal will not set aside or endeavour to go behind. 32. The claimant's appeal relates solely to his treatment in prison on return. The Tribunal find that he has been tried in absentia and sentenced to ten years of actual imprisonment for desertion in accordance with Article 256 of the Military Code. There is nothing exceptional or extraordinary concerning the appellant's circumstances and the sentence imposed is not disproportionate. The Tribunal find that the appellant's removal to Algeria would not cause the United Kingdom to be in breach of its obligations under Article 3 of

10 Decision the 950 Convention and in the circumstances can only allow the Secretary of State's appeal. 33. The appeal of the Secretary of State is allowed. G.F. DENSON