ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 10 June 2008
Date Determination notified: 13 October 2008
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE MCGEACHY
MR H G JONES, MBE, JP
|Secretary of State for the Home Department||RESPONDENT|
For the appellant: Mr S Jaisri of Counsel instructed by Dexter Montague & Partners
For the respondent: Ms R Brown, Home Office Presenting Officer
DETERMINATION AND REASONS
1. Prison conditions in Bangladesh, at least for ordinary prisoners, do not violate Article 3 ECHR.
2. This conclusion does not mean that an individual who faces prison on return to Bangladesh can never succeed in showing a violation of Article 3 in the particular circumstances of his case. The individual facts of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3.
3. In view of the significant changes in Bangladesh politics in recent years, AA...Bihari-Camps) Bangladesh CG  UKIAT 01995, H (Fair Trial) Bangladesh CG  UKIAT 05410 and GA (Risk-Bihari) Bangladesh CG  UKIAT 05810 are now removed from the list of AIT country guidance cases.
"…it is agreed that…the AIT will have to conduct an assessment, including a consideration of any relevant country guidance decisions, of whether the prison conditions in which the Appellant would be placed would give rise to a risk of Article 3 ill-treatment, should it find on reconsideration that there is a relevant risk of the Appellant's imprisonment on return to Bangladesh."
"I accept that the documents relating to the Applicant's involvement in the first case are genuine. It is quite clear that evidence has been considered by the court in Bangladesh and I am not prepared to accept the Applicant's account of what happened at face value. I do not find it credible that if he had genuinely being the victim of an attack by the Awami League supporters that he would have been convicted and sentenced to seven years imprisonment. It appears to me to be likely that the Applicant left Bangladesh when it became clear to him that the outcome of the case was going to result in a term of imprisonment. He is quite clearly simply fleeing justice. He conceded at the conclusion of his cross-examination that the only reason he had left Bangladesh was to avoid serving the sentence of imprisonment."
The background evidence
The expert's reports
The Home Office Operational Guidance Note December 2007
"While prison conditions in Bangladesh are poor with overcrowding in some establishments being a particular problem, conditions are unlikely to reach the Article 3 threshold. Therefore, even where applicants can demonstrate a real risk of imprisonment on return to Bangladesh a grant of Humanitarian Protection will not generally be appropriate. However, the individual facts of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention, the likely type of detention facility and the individual's age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate."
The first issue
The second issue
The general background situation
The expert evidence
Tribunal country guidance
Strasbourg case law on prison conditions
115. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.
116. In the modern world States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, BAILII:  ECHR 161, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, BAILII:  ECHR 66,, § 95, ECHR 1999 V; and Assenov and Others v. Bulgaria, BAILII:  ECHR 98, judgment of 28 October 1998, Reports 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, BAILII:  ECHR 54, judgment cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (Indelicato v. Italy, no. 31143/96, BAILII:  ECHR 599, § 30, 18 October 2001).
117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, BAILII:  ECHR 1, 18 January 1978, Series A no. 25, p. 65, § 162). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof "beyond reasonable doubt". However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.
118. The Court has considered treatment to be "inhuman" because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be "degrading" because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudla v. Poland [GC], no. 30210/96, 10 BHRC 269, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is "degrading" within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, BAILII:  ECHR 102, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-2822, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, BAILII:  ECHR 296, no. 28524/95, § 74, ECHR 2001-III).
119. In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, BAILII:  ECHR 171, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilascu and Others v. Moldova and Russia [GC], no. 48787/99, BAILII:  ECHR 318, § 428, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, BAILII:  ECHR 59, § 62, 4 February 2003).
In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudla v. Poland, (2000) 10 BHRC 269, cited above, § 94; and Kalashnikov v. Russia no. 47095/99, BAILII:  ECHR 596, § 95, ECHR 2001-XI). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued.
Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (Dougoz v. Greece, no. 40907/98, BAILII:  ECHR 213, § 46, ECHR 2001-II)."
"181. The Court has also borne in mind, when considering the material conditions in which the applicant was detained and the activities offered to him, that Ukraine encountered serious socio-economic problems in the course of its systemic transition and that prior to the summer of 1998 the prison authorities were both struggling under difficult economic conditions and occupied with the implementation of new national legislation and related regulations. However, the Court observes that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. Moreover, the economic problems faced by Ukraine cannot in any event explain or excuse the particular conditions of detention which it has found in paragraph 178 to be unacceptable in the present case."
"with particular concern that, until at earliest May 1998, the applicant, in common with other prisoners detained in the prison under a death sentence, was locked up for 24 hours a day in cells which offered only a very restricted living space, that the windows of the cells were covered with the consequence that that was no access to natural light, that there was no provisions for any outdoor exercise and that there was little or no opportunity for activities to occupy himself or for human contact".
"…In general, prisons and jails have low standards of hygiene and sanitation and are seriously overcrowded. Rehabilitation programs with trained social workers were rudimentary or nonexistent through the late 1980s. Prison conditions are extremely poor for the majority of the prison population. Rape of female detainees in prison or other official custody has been a problem. Most prisons are overcrowded and lack adequate facilities. Government figures indicate that the existing prison populations of roughly 66, 5000 is 278 percent of the official prison capacity. Of those, approximately 25 percent of those detained had been convicted and 971 percent were awaiting trial or under trial. In some cases, cells are so crowded that prisoners sleep in shifts. The Dhaka Central Jail reportedly houses more than 9,775 prisoners in a facility designed for fewer than 3,000 persons. A 1998 judicial report noted that the physical condition of jails is poor, and food is unhygienically prepared. Drugs are abused widely inside the prisons. The treatment of prisoners in the jails is not equal. There are three classes of cells: A, B and C. Common criminals and low-level political workers generally are held in C cells, which often have dirt floors, no furnishings, and poor quality food. The use of restraining devices on prisoners in these cells is common. Conditions in A and B cells are markedly better; A cells are reserved for prominent prisoners. A new prison facility in Kashimpur, north of Dhaka, opened in September. Few facilities exist for children whose parents are incarcerated. Prisons conditions are extremely poor for most prisoners. One human rights organisation reported that 72 persons died in prison or police custody during the year 2000. According to credible sources, poor conditions were at least a contributing factor in many of these deaths. "
"The UNDP report specified that there were then 80 prisons in the country; however, 16 of these 80 were thana jails, otherwise known as "detention houses", which were not functioning at the time. The Ministry of Home Affairs, through the directorate of prisons, is responsible for their management. Overcrowding had already worsened significantly by 2002, due mainly to the large number of prisoners awaiting trial. Prisoners/detainees were accommodated either in separate cells or in association wards, which are dormitories accommodating about 100 to 150 individuals. Under dormitory rules, each prisoner was entitled to 36 sq.ft. of floor space; however, overcrowding has reduced the space available per prisoner to 15 sq.ft. In certain wards prisoners had to sleep in shifts owing to lack of space. Ordinary prisoners received 2,800 to 3,000 calories of food per day, considered satisfactory by the Institute of Public Health Nutrition; so-called 'classified prisoners' received more. However, prisoners were often required to eat their meals sitting on the ground under the open sky, in all weathers. The striped, coarse uniform worn by ordinary prisoners was considered demoralising. Bedding, consisting of only two blankets, was inadequate, degrading and detrimental to physical and mental health. Prison authorities still followed statutes framed by the British colonial authorities in the nineteenth century, the main objective of which was the confinement and safe custody of prisoners through suppressive and punitive measures. There was an absence of training programmes for the reform and rehabilitation of offenders and vocational training programmes did not cater for all classes of prisoners. The recruitment and training procedures of prison officers was inadequate to facilitate the reform of prisoners. The number of medical doctors was disproportionate to the size of the prison population, and women prisoners were attended to by male doctors. There were no paid nurses in prison hospitals; literate convicts worked as hospital attendants, without training. There were no trained social welfare officers or psychologists. Handcuffs and fetters were used as punishment for breaches of prison rules".
"The inspector general of prisons sought to improve conditions. He introduced several training programs and literacy classes to help rehabilitate prisoners, cracked down on corruption in the system, and improved inmate food and other services
The government undertook reforms aimed at improving the situation. The inspector general of prisons took several steps to improve the prison system, including updating the jail code, reducing corruption and drug trafficking in prisons, limiting the use of full shackles on prisoners for reasons other than discipline, improving the quality of food service, creating more prisoner vocational training opportunities and literacy classes, and improving morale of prison staff…"
"According to Odhikar [a local human rights NGO], 87 persons died in prison and 67 died while in the custody of police and other security forces, among them a ten-year old boy who was found with his throat slit in the Juvenile Detention Centre. Of the 87 persons who died, 77 died of natural causes; four died of unnatural causes; and six died of unknown or unspecified causes".
"…However, the individual facts of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention, the likely type of detention facility and the individual's age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate."
The individual facts of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being, inter alia, whether there is a political element to the person having been detained, whether it is detention awaiting trial or detention in service of a sentence, the likely length of detention, the likely type of detention facility, and the individual's age and state of health.
The appellant's case
Dr H H Storey
Appendix of Background Materials
• Munim Commission Report on Jails 1980 (cited by Professor Coyle in his May 2007 report)
• "Crime and Society: a comparative criminology tour of the world", website document (circa 2001)
• US State Department Report 2001
• Home Office Country Assessment October 2002
• UNDP report 2002 (as summarised in COIS report August 2007 at para 15.93)
• Penal Reform International, 2005. Formulation mission on penal reform in Bangladesh: Report for UNDP 2005 (unpublished) (as summarised by Professor Coyle in his May 2007 report)
• Baguenard J et al, "Activating the justice system in Bangladesh: A report by the Justice Identification Mission", European Commission report 2005 (as summarised by Professor Coyle in his May 2007 report)
• "Top Bangladeshi to stay in jail", BBC News 4 June 2007
• COIS Report of 31 August 2007
• OGN for December 2007
• Human Rights Watch report for January 2008
• Amnesty International Report for 2008
• Report from Bangladesh News published 1 February 2008
• Report from the New Nation dated 3 March 2008 headed "Row over accommodation in [Chittagong] Jail: Prison Unrest"
• US State Department Report dated 11 March 2008
• World Prison Brief Online, www.prisonstudies.org (accessed on 8 June 2008)
• Extracts from Vol 1 The Penal Code, 1860 (as amended)