MS (Risk-Homosexuality-Military Service) Macedonia CG  UKIAT 03308
Date of hearing: 30 May 2002
Date Determination notified: 30 July 2002
|Secretary of State for the Home Department||RESPONDENT|
"3. I have considered the grounds of appeal in the light of the determination of the evidence before the adjudicator. The grounds of appeal are just arguable and for this reason I grant leave. The Applicant should be aware, however, that the claim that the penalties for draft evasion are excessive and punitive and that prison conditions breach Article 3 of the European Convention were extensively considered by the Tribunal in a recently promulgated determination whose name and citation number is not presently available to me but which is highly germane to the issues on these aspects. My recollection is that the Applicant's representatives were also instructed in that recent appeal before me, and they will no doubt ensure that a copy of that determination is submitted for the consideration of the Tribunal in the present appeal. The translation of the provisions of the criminal code relating to draft evasion in the Applicant's bundle before the adjudicator was not a full translation and I have reason to believe that the full translation will show a far wider discretion in sentencing available to the Macedonian Courts both under the former and the current law than appears from the partial translation. This matter is also touched on in the decision to which I refer above. Leave to appeal is granted."
"If the claimant returns to Macedonia he would face a possibility of being found to have remained outside the country to avoid military service and thus face imprisonment for one - ten years. Documentary evidence indicates that prison conditions in Macedonia are 'inhuman and degrading'.
"12. I would seem to us that a term of imprisonment of one to five years would be disproportionate to the offence committed but we appreciate the fact that it is probably unlikely that the Appellant would receive the maximum term of imprisonment. Having said that, the recent international Helsinki Report of 2001 gives us some concern as to the likely conditions of prisons."
"To summarise what we have said above, bearing mind what is said in the US State Department Report and the fact that no other penal institution is specifically criticised in the Macedonian Committee Report to the Helsinki Foundation application, we are not satisfied that the evidence shows that it is reasonably likely that prison conditions generally in Macedonia are such as would lead to treatment contrary to Article 3. In effect Mr Nathan is claiming that anybody in prison in Macedonia is at a real risk of inhuman or degrading treatment. That is not a proposition supported by the evidence either generally or in respect of this specific Appellant."
"We have no evidence to give us any indication as to where this Appellant is likely to be imprisoned in Macedonia but we do not consider it would be appropriate to assume, without any evidence at all, that any other prison would be less inhuman and degrading, when referring to Idrizovo prison."
"5. The UNHCR Handbook on Procedures and Criterion for Determining Refugee Status states that fear of prosecution or punishment for desertion of draft evasion does not in itself constitute a well-founded fear of persecution. The Handbook also states that a person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or fear of combat.
6. However, the Secretary of State is aware that in accordance with the terms of Article 120 section 2 of the Macedonian Constitution, the Macedonian Assembly on May 30, 2001 passed a law which granted the right for all citizens who were eligible for military service to opt to serve in non military agencies. The law stated that every person, who due to religious or moral beliefs does not want to use weapons during military service in the Macedonian Army, can serve without using weapons or can serve in the health, social, and humanitarian organisations or in the fire brigades. In these circumstances, therefore, military service will last 14 months instead of 9 months. Accordingly, the Secretary of State does not accept that you have a well-founded fear of persecution because of your objections to military service.
7. With regards your homosexuality, and contrary to the contents of your Statement of Evidence Form, the Secretary of State is aware that homosexuality is no longer a criminal offence listed in the Macedonian penal code. He does not accept, therefore, that your declaration to being homosexual is evidence that you have a well-founded fear of persecution. Furthermore, your claim that your homosexuality would have an adverse effect if you were forced to serve in the military is, in the opinion of the Secretary of State, negated for the reasons outlined in paragraph 6 above."
"10. The Appellant also claims to be a conscientious objector. The only reason given is that he is a pacifist and if there were a war given the history of the Balkans 'it is almost certain that such a conflict would be internationally condemned. I accept that the Appellant became eligible for 'call up' when he was 18. However he has successfully evaded military service allegedly through the intervention of his cousin for three years during which time he has twice left Macedonia without any problems. The overwhelming inference that I draw is that his fears of ill-treatment by fellow soldiers due to his homosexuality that is the real reason for his aversion to military service. The question then arises whether that fear brings the Appellant within paragraphs 168 & 169 of the UN Handbook. To do so he must show that he would suffer disproportionately severe punishment on account of his homosexuality.
11. Mr Nathan referred me to two serious sections in the International Helsinki Federation (IHF) Report on Macedonia in his Bundle on the sanctions for draft evasion and the conditions in prison. A new draft defence law was debated in Parliament at the end of 2000 providing for an alternative civilian service for conscientious objectors but the draft did not entirely satisfy the IHF because amongst other criticisms it prescribed 'a punitive lenth of 14 months civil service against the normal military service of nine months." Otherwise the penalty for draft evasion is 'a fine and/or imprisonment for up to a year or from one to five years for anyone found to have left the country and remained abroad in order to avoid military service'. Conditions in the largest/oldest prison in the country are said to be 'extremely poor amounting to inhuman or degrading treatment or punishment.
12. I have given much anxious thought to all aspects of this appeal. On the evidence before me I accept that life may well be difficult for the Appellant because he is a homosexual but that attitudes are changing. I do not accept on the basis of Sepet and Bulbul and that he has shown he is a genuine conscientious objector.
He has successfully evaded military service in the past and I find his explanation that his cousin managed to cancel his 'call up' papers for over three years implausible especially as the Appellant although not a student twice managed to leave Macedonia during that period. I consider he has been less than truthful about his ability to avoid military service. I do not therefore accept that he would be liable for the longest periods of imprisonment meted out to draft evaders. The shortest period is one month which I do not consider punitive and there is no reason to suppose that he would be incarcerated in the prison previously described.
I consider the delay in claiming asylum after he had become aware that he could do so is adverse.
In my opinion he had not been persecuted when he left Macedonia I do not consider that the difficulties he may face on return amount to persecution.
He has failed to discharge the onus and the appeal is dismissed."
J A O'BRIEN QUINN Q C