[2003] UKIAT 00196 S (Macedonia)

IMMIGRATION APPEAL TRIBUNAL

Heard at Field House
On: 6 November 2003
Prepared: 9 November 2003

Before

Mr Andrew Jordan
Mrs R Faux JP

Between:
	Claimant

and

The Secretary of State for the Home Department
	Respondent

For the claimant: Miss B. Gill, counsel
For the Secretary of State: Mr J. McGirr, HOPO

DETERMINATION AND REASONS

1.	The claimant is a national of Macedonia.  The Secretary of State for appeals against the decision of an adjudicator, Mrs N. Baird, following a hearing on 4 December 2002 allowing the claimant's appeal against the decision of the Secretary of State to refuse both the claimant's asylum and human rights claims.

2.	The claimant was born on 10 August 1984 and is 19 years old. He is an ethnic Albanian. He entered the United Kingdom on 26 November 2001, whilst he was still a minor, and applied for asylum on arrival.

3.	At the hearing before the adjudicator, the claimant referred to a letter sent to him from the Macedonian authorities requiring him to attend for a medical examination with the view to his commencing national service.  National service in Macedonia is compulsory.  As an Albanian, he said he did not want to have anything to do with the Macedonians.  Consequently, he did not wish to participate, even in a non-combat role.

4.	The claimant's counsel referred to the adjudicator to the case of Stojanovski [2002] UKIAT 03308 (incorrectly referred to by the adjudicator as Stoganovski) in which the Tribunal, (J. A. O'Brien Quinn QC, chairman) considered the case of a draft evader in Macedonia who faced imprisonment.  The Tribunal considered prison conditions in Macedonia and relied upon the contents of a report on Human Rights Practices in Macedonia for 2001 in which it was stated that the Helsinki Committee had visited a prison facility at Idrizovo where prisoners being held in solitary confinement were kept in cells that measured between 10 and 12 sq m, without heating and with the window permanently open.  If it is suggested that a cell measuring as much as 3 m by 4 m is too small for a solitary occupant, we could not agree.  It was also said that food was prepared in unhygienic conditions.

5.	The Tribunal in Stojanovski decided in paragraph 41 of the determination that a sentence of imprisonment, however long or short in what was described as the "internationally accepted bad conditions in the Macedonian prisons" would amount to a breach of the appellant's rights under Article 3 of the ECHR.  Looking at the determination, it appears that the 2001 report was based on a visit to a single prison facility and concentrated upon conditions of those held in solitary confinement.

6.	In the present appeal, the adjudicator decided that the claimant was liable to perform military service and did not wish to do so.  She made no reference to present prison conditions as set out in the background material.  In our view, in failing to pay regard to the background material, the adjudicator was wrong in law. She relied exclusively on that the Tribunal's decision in Stojanovski and allowed the appeal.

7.	The Secretary of State appealed.  In doing so, he relied upon the CIPU Report for October 2002 to the effect that prison conditions generally meet international standards and prisons need basic needs of food, hygiene and access to medical care.  This assessment is repeated in the current background material set out in the April 2003 Country Assessment:

" Prisons 

5.24	Prison conditions generally meet international standards, and prisons meet basic needs of food, hygiene and access to medical care.  The Ministry of Justice reported two deaths in custody due to natural causes.  Men and women are held separately.  While juveniles also are supposed to be held separately, limited facilities at times result in older juveniles being confined with adults.  Pre-trial detainees are held separately from convicted criminals. 

5.25	The Government permits prison visits to prisoners by independent human rights monitors and the Human Rights Ombudsman.  In February the Government signed an agreement allowing the ICRC to visit and register convicted prisoners under procedures that the ICRC reported were acceptable. 

5.26	The European Committee for the Prevention of Torture and inhuman or Degrading Treatment or Punishment (CPT) released a report on 11 October 2001 covering the condition of persons being held in police custody and two of Macedonia’s prisons. Regarding the prisons the report states, “the delegation received no allegations of torture or other forms of deliberate ill treatment and gathered no other evidence of such treatment of inmates by staff in the establishments visited; or in other establishments under the authority of the Ministry of Justice”. Of the 4

5.27	As a result of the Government’s ratification of the European Convention the CPT was authorised to visit all places of detention on a regular and ad hoc basis. 

8.	Furthermore, the Tribunal has been slow to find that prison conditions elsewhere in the world, whilst falling below European standards, are such as to establish an Article 3 violation.  The Tribunal’s approach to non-European prison conditions has been shown in a trilogy of cases: Chowdhury [2002] UKIAT 00054, Akcan [2002] UKIAT 01111 and Fazilat [2002] UKIAT 00973.  In Chowdhury, the Tribunal (Mr Drabu, Chairman) stated, in paragraph 9 of the determination that for mistreatment to be caught by Article 3 “it must be shown to have attained a minimum level of severity and the assessment of this minimum level of severity is relative and… will depend on factors including the duration of the treatment, its physical or mental affects, and the age, sex, vulnerability and state of health of the victim.”  In considering prison conditions in Bangladesh, the Tribunal noted:

“We also accept that he will be detained in conditions that may well be “extremely poor”.  This will undoubtedly result in the ill-treatment of the appellant.  But ill-treatment must reach a minimum level of severity before there is a breach of Article 3.  The assessment of this minimum level of severity is relative and must depend upon the circumstances of the case.”

9.	In Fazilat, the President, Collins J., considered prison conditions in Iran that were described in the background material as “harsh”.  A fuller description is found in paragraph 14 of the determination.  The Tribunal concluded:

“We do not doubt that prison conditions in Iran are far from ideal.  We do not doubt that they may not measure up to what is expected in this country, or perhaps in any country which is a signatory to the European Convention on Human Rights.  As the Court at Strasbourg has recognised, it is not for signatories to the Convention to impose the standards of the Convention on all the world.  Recognition has to be had to the situation in individual countries and to the standards that are accepted, and expected, in those countries.  Of course in relation to Article 3, there is a line below which the treatment cannot sink, if we may put it that way.  That is to say that it is always possible that the sort of treatment that may be routinely expected in prison in a particular country falls so far below the standards that would be expected in a civilised country, that it could properly be said to amount to inhuman or degrading treatment.  But, as again the Court in Strasbourg has indicated, the threshold has to be a high one because, otherwise, it would be, as one recognises, quite impossible for any country to return to a non-signatory an individual who faces prosecution, rather than any sort of persecution.  The conditions may well be regarded as harsh.  That is a value judgment and there is no sufficient indication from the material before us that this respondent would run the risk facing treatment which amounted to a breach of Article 3.”
[Paragraph 15]

10.	Mr McGirr, who appeared on behalf of the Secretary of State, referred us to the decision of the Tribunal in Naumoski [2003] UKIAT 08103, (Mr RG Care, chairman).  In that case, the Tribunal referred to the Helsinki Report of the May 2002 Fact Finding Mission to Macedonia, particularly as it related to draft evaders.  Reference was also made to the Tribunal decision in Stojkowski [2002] UKIAT 01106, (not to be confused with Stojanovski [2002] UKIAT 03308, above).  The Tribunal in Naumoski concluded that there was no evidence placed before it that returning draft evaders suffer inhuman or degrading treatment on return.
  
11.	In our judgment, rather than relying on Tribunal decisions, it is preferable to refer to the background material.  The only background material before us is the CIPU Report, the material parts of which we have set out above.  On the basis of this material, the claimant has failed to establish that he will be subjected to a violation of his Article 3 rights on return.

12.	We also consider that it is worth noting what is said in the CIPU report about national service:

5.17	Citizens of Macedonia were expected to serve 9 months military service with no options for conscientious objectors.  This was changed on 30 May 2001 by the Macedonian Assembly's Law on Defence, article 120, section 2.  It is reported to state "every person, due to religious or moral beliefs do not want to use weapon (sic) during military service in the Macedonian Army, can serve without using weapon or can serve in the health, social, and humanitarian organisations or in the fire brigades.  In that case the military service will last for 14 months instead of nine." 

13.	As we understand the position, the claimant accepted that he had the option of taking on a non-combat role in lieu of military service.  In countries in need of re-construction, national service may provide an important means by which citizens contribute to society in the absence of an economy that permits the state to pay for those services.  In the present appeal, the claimant failed to identify any moral scruple justifying his wish to avoid national service.  The adjudicator did not accept he would be persecuted during the course of national service by reason of being an ethnic Albanian.  In the circumstances, it is difficult to see the basis upon which the claimant might argue that the penalty for refusing to perform national service in a non-combat role might amount to a breach of his human rights.  The fact that there is a differential between the period of military service (nine months) and non-military service (14 months) appears to us to reflect an understandable need to provide an incentive for those opting for military service.

14.	We are satisfied that the adjudicator's treatment of the issue of penalties for evading national service is not sustainable.  Accordingly, we allow the appeal.

  Decision: The appeal of the Secretary of State is allowed. 

Andrew Jordan
Vice President
9 November 2003