C/2001 1856, C/2001 1857
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE KEENE
| S & others||Appellant|
|- and -|
|The Secretary of State for the Home Department||Respondent|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Sean Wilken and Kristina Stern (instructed by Treasury Solicitors) for the respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Laws:
This is the judgment of the court.
“2. There have been a very large number of appeals relating to ethnic Serbs and many have been adjourned by the tribunal pending the outcome of these appeals, which have been described as test cases... Furthermore, it is to be noted that a large number of appeals have been allowed by adjudicators during the course of last year (some as a result of concessions by the Secretary of State) and we have been provided with a list of some 264 such appeals. Equally, the tribunal has had a number of such appeals before it. While the results have varied, the approach has been consistent, but the tribunal has had to rely on whatever material has been put before it. This
has meant that there has been a degree of apparent inconsistency and so it was thought desirable that there should be an authoritative decision as to what the current situation is to enable consistent results to be achieved because this tribunal has been able to consider all relevant evidence.
3. … [T]hese cases are to be regarded as definitive unless there is a material change in the situation in Croatia. Since, as will become apparent, we are persuaded that none of the eight individuals concerned here have established a well-founded fear of persecution, such a change will only be for the worse if most applications involving ethnic Serbs are not to fail.”
THE FACTUAL BACKGROUND AND THE DETERMINATION OF THE IAT
“10. The persecution alleged in these cases is by Croats and involves severe discrimination and hostile acts on the ground of ethnicity. Racial hatred has a long history in that part of Europe and in the course of the fighting which followed the break up of Yugoslavia terrible atrocities were committed by Serbs against Croats and by Croats against Serbs. In Eastern Slavonia, where most of the Serbs who have remained in or returned to Croatia now live, the Serbs were in the ascendancy between 1991 and 1995. In 1991 Vukovar was captured and there were a large number of murders of civilians perpetrated by forces under the command of Colonel Msric. IL and VL, who are son and mother, rely heavily in support of their claims on the fact that their father and husband was killed at Vukovar while serving under Colonel Msric’s command. He together with other officers has been indicted for the murder of some 360 men taken from Vukovar hospital. Since 1995, when the Serb forces were driven out, initially UNTAES and since 1998 the Croats have been in control. Initially, when President Tudjman was in power, widespread discrimination against the harassment of Serbs was encouraged. Tudjman’s party, the HDZ, was fervently nationalistic. The acts of harassment of which all the appellants complain occurred before 1998 and 1999 at a time when the government was not only unwilling to provide protection against hostile acts towards Serbs but was positively encouraging them. In December 1999, Tudjman died and in February 2000 there was a change of government. The new President has adopted a conciliatory approach and is determined to uphold minority rights and to facilitate the return of Serbs who had fled. It is accepted by all who have reported on the situation in Croatia and both by Dr Gow and Judge Karphammer that the government is trying to achieve rapprochement. It is not mere rhetoric. There have been significant acts which show that the government is determined to overcome the hatred and divisions. Ethnic cleansing, which the hard-line Croats want to achieve, must not be allowed to succeed.
11... The government’s intentions are undoubtedly being to an extent frustrated by those responsible at lower levels for implementing the relevant policies. Discrimination remains and acts of harassment on ethnic grounds are commonplace and are frequently not dealt with properly by the police or judiciary. That there have been improvements since last February cannot be doubted, but we have to ask ourselves whether those improvements are such as to prevent the appellants establishing that there is a real risk of persecution. If there is such a risk, the persecution will be for a convention reason, namely race or nationality.
12. We are therefore largely concerned with persecution by non-state actors. The only qualification relates to prosecutions for war crimes which are said to amount to persecution. Thus the Convention can only apply if the government is unwilling or unable to provide the necessary protection to its citizens. The issues are whether there is a real risk of persecution and, if so, whether the government is unable or unwilling to provide protection. We have posed two questions. In reality, there is only one, since it is apparent from the decision of the House of Lords in Horvath v Secretary of State for the Home Department  3 WLR 379 that the test as to whether any ill-treatment amounts to persecution depends not only on the severity of that ill-treatment but also upon there being a failure by the state to afford protection against it: see per Lord Hope of Craighead at p. 385.”
|Name||Date Departure||Date of SSHD||Date of SA||Date of IAT|
|IL & VL||16.12.98||11.11.99||24.8.00||30.5.01|
“18. We must now consider the evidence before us of the situation facing such as these appellants if returned to Croatia. In this as in all asylum cases the tribunal has available a number of Country reports. There are the usual annual reports from the US State Department. There are reports from Amnesty International, from the UNHCR, from Human Rights Watch and from the Home Office (CIPU). There is a substantial report from the ECRE Focus Group on South-East Europe based on research carried out between November 2000 and January 2001 which is concerned specifically with the return of refugees. This points out some problems and makes recommendations for improvements. And there are regular reports issued weekly and consolidated regularly from the Organisation of Security and Co-operation in Europe (OSCE). There are in the bundles before us many other reports from various organisations, letters to and from the British Embassy and newspaper cuttings all of which helps us to form a reliable picture of what is happening and is likely to happen. Since this is intended to enable the tribunal to form a definitive view as at the date of the hearing (updated by further material provided to us in written submissions at the beginning of April which does not in fact add significantly to what was before us at the hearing) of the situation in Croatia, the material has been somewhat more extensive than that which is usually deployed in similar cases. But it involves the same sort of material.
19. In all cases, we have to distil the facts from the various reports and documents. Bodies responsible for producing reports may have their own agenda and sources are not always reliable: People will sometimes believe what they want to believe and, aware of that, those with axes to grind may feed willing recipients. Many reports do their best to be objective. Often and inevitably they will recount what is said to have happened to individuals. They will select the incidents they wish to highlight. Such incidents may be wholly accurately reported, but not always. This means that there will almost always be differences of emphasis in various reports and sometimes contradictions. It is always helpful to know what sources have been used, but that may be impossible since, for obvious reasons, sources are frequently anxious not to be identified. We are well aware of criticisms that can be and have been levelled at some reports and are able to evaluate all the material which is put before us in this way.
20. In addition, we have had the advantage of hearing from two acknowledged experts in relation to Croatia. Dr Gow is a reader in War Studies at King’s College, London. He has visited countries which formed Yugoslavia on average two or three times a year and has worked as an expert advisor and witness for the Office of the Prosecutor at the UN International Criminal Tribunal for the former Yugoslavia at The Hague. Judge Karphammer was a judge in Sweden and has since 1985 been senior legal advisor in the Eltsberg County Council in Sweden. More importantly for our purposes, between 1997 and June 1999 he was head of the legal unit of the OSCE in Eastern Slavonia and is now an international judge in UNMIK in Kosovo. He has close personal ties in Croatia and keeps himself informed of the situation in that country, which he visits on a monthly basis. It was his report in October 1999 which led to acceptance by the Home Office that those Serbs who have served in the army against Croats should be regarded as at risk of persecution if returned. We have been assisted by evidence; each we entirely accept was doing his best to help us to understand the realities of the situation facing ethnic Serbs in Croatia.”
There was also a report from Ms Savic, of the appellants’ solicitors, who had made what she described as a “fact finding” visit to Croatia about twelve months before the hearing at the Tribunal. The IAT did not find her report to be of any real assistance (paragraph 21). No one complains of that conclusion, and with respect we need not refer to that material further.
“22. The appellants rely on two generally applicable reasons to fear persecution. These are the risk of ethnically motivated violence against which the State is unable or unwilling to provide adequate protection and general discrimination in employment, provision of state benefits and welfare care and, in particular, in housing. Following the fighting, many homes occupied by Serbs have been destroyed and others have been taken over by Croats. The legal system has been at best reluctant to make orders requiring that the Croats leave and some judges who have made such orders have been intimidated. These reasons apply to all the appellants and their fears are fuelled by the harassment they suffered before leaving Croatia.
23. In addition, reliance is placed on two further matters relating to military service. First, those who served in the army, particularly the OS RSK, are likely to find themselves being prosecuted for war crimes merely because of such service. The attitude has been that there is general responsibility for the crimes that were undoubtedly committed and that it is unnecessary to establish individual responsibility... Secondly, males under 27 are liable to be conscripted into military service in the Croatian forces. That will result in a serious risk of violence towards and so persecution by Croats particularly of those who had served in Serb forces in the past...”
There follows in the determination some considerable citation from the reports, including a briefing by Amnesty International concerning Croatia, made on 28th March 2001, to which Mr Blake made specific reference. Then at paragraph 25 the IAT observed:
“Since the situation is somewhat fluid and improvements are undoubtedly occurring, it is necessary to look particularly at the most recent reports”.
We should next set out paragraphs 28-30 in part:
“28. The latest full report by the OSCE is dated 14 March 2001. It is intended to provide a review of progress since the previous full report in November 2000. It notes a number of positive developments, particularly in relation to the judiciary and the police. There have been ‘some promising steps’ taken to address property repossession and new instructions issued to facilitate assistance in reconstruction of damaged property. It is noted that, although there have been a significant number of returnees, many do not remain. The approach to war crimes has improved; statements have been made recognising the need to establish individual responsibility. There is in train a review of prosecutions for war crimes and the police have, in carrying it out, conducted themselves ‘professionally and promptly’. It states:-
‘The Mission expects that all cases will be dealt with expeditiously by the judiciary and based solely on individual responsibility’.
The report deprecates the failure to make progress to remedy the effects of previous discriminatory legislation (now abolished) affecting property rights. Overall, it is relatively optimistic.
29. The report notes that the government has reaffirmed its commitment to a multi-ethnic police force throughout Croatia, and in Eastern Slavonia, as we shall see, it composition reflects the ethnic balance. Its performance is assessed as being good, with more members of minority communities expressing satisfaction. It states:-
‘In the Vukovar area, police commanders took a number of steps including meeting the parents and school administrators, to ease ethnic tensions in two schools. However, the classification of ethnically motivated incidents by the police as being only violations of public order was still noted throughout Croatia – OSCE police monitors maintained regular working meetings to retroactively monitor as well as to provide advice and assistance to local police officers’.
With reference to the judiciary, the report notes:-
‘Amendments to the laws incorporated some recommendations of the Council of Europe experts. For example, the amendments provided for more transparency and for an increased role of professional bodies within the procedures for appointment, dismissal and discipline of judges. They also allow for a Constitutional Court review of disciplinary decisions on the request of the individuals concerned, providing grounds for an increased independence of the judiciary’.
“30. Dr Gow and Judge Karphammer both take the view that the reports are too optimistic and that there remains a risk of persecution, largely because, whatever the government may say and do, the HDZ and those who support its aims are still in control at lower levels and their actions maintain the discrimination and enable harassment and violence to occur with impunity... Essentially, the burden of both witnesses’ evidence was that it was too early to say that the reforms had borne fruit and the risk of persecution remained. The state was certainly unable to provide the necessary protection.”
Then the IAT’s general conclusions are expressed thus.
“32. ... Judge Karphammer was obviously surprised that the latest report [sc. of OSCE] was so optimistic, but we do not know what may have led to the observations of those with whom he discussed it. It may have been a desire to agree with his concerns. We have, of course, looked critically at the reports, but it contains significant reservations despite its optimism. In general, it seems to us to fit in with the other recent reports which are before us. We take the view that, although we recognise and take account of the criticisms, we can accept the positive approach indicated by the OSCE reports, supported as they are by the UNHCR and by other reports. It follows that we do not accept that the criticisms made by the witnesses are sufficient to make us reject the overall picture painted by the reports.
33. In the end, we are not persuaded that ethnic Serbs as such face a real risk of persecution based on violent attacks or harassment. There is, in our view, no real risk that such activities will not be properly dealt with by the police and the judiciary. There can of course be no guarantee for an individual that he or she will not suffer an attack from a Croat or a group of Croats, but we are concerned with whether there is a real risk. We have not referred to all the passages in all the reports which have been relied on by the parties. We have of course considered them all and, we hope, have fairly summarised their effect. We also take into account the attitude of the UNHCR. In August 2000 it told the Home Office that it had begun to encourage ethnic Serb refugees who were prepared to do so to return to Croatia, although it could not be ruled out that they might suffer discrimination or harassment ‘sometimes to a degree that entitles them to refugee status’. We note that in a further letter of 15 March 2001 it recognises that individuals may be able to substantiate valid refugee claims and so recommends that ‘each case be carefully examined on its own merits to ensure that individuals in need of international protection receive it’. While we recognise the criticisms that can be and have been levelled at the UNHCR, in particular that it wants to encourage refugees to return so that they cease to be a responsibility of UNHCR, as a responsible body it would not in our view encourage return unless satisfied that in general there was no real risk of persecution. To do otherwise would be to encourage breaches of the Convention.
34. We now have to ask ourselves whether past military service or the prospect of conscription tip the balance in favour of the appellants. Past military service may have two effects. First, it may make the individual more likely to be subjected to harassment or violence once it is known, as it would almost inevitably be, that he or she had served in the army against Croats, especially in the OS RSK. This would apply not only to those who had served but to their families or relatives. Such individuals would be at even greater risk in the war affected areas. This had led Mr Nathan to submit that Serbs in those areas must be recognised as refugees because they are at risk of persecution. There are undoubtedly stronger feelings in those areas because of the damage inflicted by both ethnic groups at different times against each other. But we do not think that the evidence supports the conclusion that in all cases where there has been military service refugee status should be recognised so that return cannot be made. Thus, while we recognise that individuals may because of special circumstances be at risk, we are not persuaded to the low standard required that even service which involved fighting against Croats suffices to create a real risk of persecution, particularly in the light of the measures adopted to protect against ill-treatment and the nature of persecution within the meaning of the Convention.
35. Secondly, past military service is said to lead to a risk of persecution for alleged war crimes, itself persecution because of the reliance on collective as opposed to individual responsibility. There is persuasive evidence that the approach is changing. We have already referred to the reports which indicate that. It is true that there is evidence that some returnees have been persecuted for and convicted of war crimes despite being included in any amnesty or cleared by the authorities before return. We do not know what the evidence was in those cases; in particular, we do not know whether there was evidence of individual participation in war crimes. It is obviously right that genuine war criminals should be convicted and punished. However, the credibility findings must lead us to accept that none of those appellants was guilty of any criminal behaviour.
36. There have been suggestions of hidden and secret lists of alleged war criminals and of many convictions in absentia. There is little concrete evidence that such lists exist or that such convictions (if they have occurred) have been pursued to any significant extent. We note the suggestion that these stories are spread to discourage Serbs from returning. This may be so. If it is, there will be no persecution if in reality no action is taken against the individual in question. We are particularly sceptical at the Danish report which records that ‘almost all male Serbs of military service age were prosecuted for offences covered by the amnesty and 95% of them convicted in absentia’. We would expect there to be evidence of far more prosecutions of returnees, even if they did not remain, than is the case. In our view, only in an exceptional case could a valid asylum claim be established because of past military service. That is the position now; it was not the position some months ago. And we note too that the UNHCR has not confirmed the suggestions.”
Those then were the IAT’s general conclusions.
THE SR REPORTS
“41. While recognising the positive achievements of the Government of the Republic of Croatia in recent months, the Special Rapporteur expresses his continuing deep concern over the unequal application of the rule of law and the politicization of local judiciaries, as demonstrated by the recent escalation in seemingly arbitrary arrests of Croatian citizens (both domiciled and returnees) of Serbs ethnicity - mainly elderly persons, pensioners, and farmers - on war crimes charges. Lists of ethnic Serbs suspected of war crimes, reportedly prepared by the previous regime, appear to have been revived by judicial bodies at the local level. Arrests are now being made on the basis of these lists (some prepared as many as eight years ago). In spite of assurances by President Stjepan Mesic that Croatia is a democratic society in which no citizen should feel targeted on account of ethnicity, these arrests have led to a deterioration of confidence in the country. Of particular concern, they are contributing to a slowing down of the already uneven process of minority return.
42. In September 2000, meanwhile, at least nine ethnic Croats – including members of the Croatian army and secret services – were detained in several cities in Croatia on charges of war crimes. Less than a month later, 13 Croatian Serbs (from a list of 121 suspected war criminals) who had long been resident in Baranja were taken into custody, also on alleged war crimes charges, although it remains unclear upon what new evidence these arrests were based. The 13 were held in the Osijek county prison, purportedly to prevent their influencing witnesses or otherwise provoking unrest among citizens. Three of the 13 were active police officers who, prior to signing an employment contract with the Ministry of the Interior in 1997 (following a thorough background check), received assurances that no war crimes investigations were pending against them. On 23 November 2000, five of them were released after a ruling by the Supreme Court requiring the Osijek county court to reconsider its decision to detain the prisoners for a further two months. The eight remaining suspects were to be held, at a minimum, until 6 January 2001.
43. Soon after two of the Baranja Serbs began a hunger strike on 13 October on grounds of unlawful detention, another list of names of 237 Serbs appeared in the city of Beli Manastir, signed by a previously unknown organisation calling itself the Croatian National Guard which has, additionally, threatened to act if the Government failed to prosecute (Serb) war criminals. Lists of thousands of alleged war criminals have also been posted on the Internet pages of the Croatian Information Centre, which was set up by the former ruling party.
46. The arrests in Baranja reveal lack of transparency in the application of the 1996 Amnesty Law, but they are also widely believed to be politically inspired and intended to convey the illusion of a politically balanced – and therefore ‘impartial’ –judicial process in local areas where, in an attempt to appease both Croats and Serbs, alleged war criminal of both ethnicities are being arrested. In any case, the large number of arrests of both returnee and domiciled Serbs in Croatia appears to be based on ethnicity and intended to force the remaining Serbs in the Danube region and other parts of the country to leave. Unofficial reports indicate that at least four Serb families left the Danube region for the Federal Republic of Yugoslavia within a week after the Baranja arrests.
47. Meanwhile, other war crimes arrests and trials are continuing. On 25 October 2000, a Serb male returnee was arrested on the basis of an in absentia indictment dating from September 1997. On 27 October 2000, two male Serbs were arrested in Borovo Naselje in the Danube region and transferred to the Pozega county prison. In the Slunj area, another Serb returnee, Milan Strunjas, was arrested on suspicion of having commanded the Territorial Defence Forces in 1991 and 1992 in the nearby village of Veljun, and an investigation was launched by the Karlovac county court into war crimes allegedly committed by him and 39 others, all suspected of being members of local Territorial Defence Forces. Borislav Stojanovic, a Serb returnee from the Republika Srpska, also suspected of war crimes, was arrested on 18 November at the Croatian border with Bosnia and Herzegovina. Another Serb returnee, Milan Grubjesic, was arrested on suspicion of war crimes in Vojnic on 4 November for his role in the death of Dragutin Drusic in Toboriste in 1991. The suspect was allegedly a member of the so-called Krajina Army and war presidency of Slunj municipality during the war. In Sisak, the trial of Nebojsa Jelic – a Serb returnee accused of severely beating a group of Croatian policemen who had been taken prisoners-of-war in June 1991 – ended on 14 November at the county court with Mr Jelic being found guilty and sentenced to five years in prison.
53. Although the Government recognizes that the observance of human rights and the protection of refugees and IDPs are of vital importance to stability in the region, and while it has committed itself publicly to respect the right of refugees and IDPs freely to return to their places of origin, their return continues to be obstructed in many ways. The central issue of property rights – in particular, property restitution and the question of lost tenancy or occupancy rights… – continues to impede successful refugee returns. The Special Rapporteur calls upon the Government to address the issue of the loss of occupancy rights to socially-owned property. The return process is also undermined, mainly at local levels, by other obstacles which hinder return because of their cumulative effect. These include damaged or occupied houses; bleak economic conditions that provide scarce employment opportunities; and difficulties with local administrations in obtaining the necessary documents and permits allowing access to social benefits.
57. Although return statistics for 2000 provided by the Government Office for Displaced Persons and Refugees (ODER) show an increase over the 1999 figures, for both spontaneous and organised return, the precise number is difficult to determine since many persons choose to return to their former homes and then leave permanently after settling their affairs. In general, the conditions for sustainable return, especially in the war-affected areas, remain largely unchanged. As of 24 November, the total number of refugees and IDPs who had returned stood at 39,318. This figure comprises 26,702 spontaneous as well as assisted returns from third countries and 12,616 returns of displaced persons, most of whom returned to the Danube region. Also as of 24 November, there were 13,689 pending applications – mostly from Bosnia and Herzegovina, and the Federal Republic of Yugoslavia – for repatriation to Croatia under the official return programme. Of this number, 11,089 will reportedly be allowed to return immediately, while the cases of the remaining 2,600 are on hold pending the provision of additional information”.
Then we should cite these following passages from the second report.
“8. The Special Rapporteur undertook his sixth mission to the Republic of Croatia from 26 February to 1 March 2001. In Zagreb, he met with the President of the Republic, senior government officials, representatives of international organizations, academics, members of Parliament, Croatian journalists and others.
9. In his meetings and statements, the Special Rapporteur commended the efforts and achievements of the Government in the past year. There have been many positive developments, including the removal of legislative and administrative impediments to return. However, problems persist because of discrepancies between the intentions of the Government and implementation at the local level. The Special Rapporteur expressed the hope that the situation in Croatia will improve after the forthcoming local elections.
11. During his mission, the Special Rapporteur expressed concern over some of the serious problems that continue, especially regarding discrimination in property restitution and the provision of alternative housing. Large numbers of refugees and displaced persons are still not returning because property rights are not being adequately addressed. According to the Government, some 3,000 property cases have been solved of a total of some 16,000 (all relating to private property that was, or continues to be, occupied). Of the remaining 13,000 cases, the Government claims that only 20 per cent relate to illegal or multiple occupancies. In this regard, the Special Rapporteur stresses again that respect for property rights is absolutely essential. If property rights are truly respected, then the problems of return and solutions to the questions of refugees and internally displaced persons will be much easier to achieve than they have been until now.
12. Returnees who previously had tenancy rights are in the worst possible situation because their cases have not been resolved at all. The problem concerns mostly urban Serbs, tenancy right holders, who have no other solution. The most important problem in the Knin area is the large caseload of unresolved requests for the return of property. In the meantime, the greatest obstacle to returns of both Croats and Serbs in the Danube region in the impossibility of finding any employment, as the economy remains devastated.
13. The Special Rapporteur notes with concern that cases of illegal occupancy are still not effectively addressed, even in Zagreb, and court ordered evictions are not implemented....
14. The Government should demonstrate its commitment to property rights by evicting illegal occupants. One year ago, OHCHR in Croatia submitted to the Government a list of 15 ‘easy’ cases, requesting immediate annulment of the right of temporary occupants in Korenica, of which the Government claims to have resolved only 5. The 15 temporary occupants were neither refugees nor internally displaced persons but ethnic Croats from Croatia – including some government officials – who were encouraged by the previous regime to use the properties mainly for business purposes.
15. War crimes prosecutions of ethnic Serbs are continuing, and the Special Rapporteur expresses concern, once again, over the fairness of these trials. According to international observers in Zagreb, 28 persons of Serb nationality – most of whom are returnees – were retained on war crimes charges in Croatia between December 2000 and March 2001. The Special Rapporteur calls for all war crimes to be investigated in accordance with international standards and for the war crimes perpetrators of any ethnicity to be brought to justice. War crimes investigations and trials should be conducted in such a way as to reassure the Serb population that they are based on due process, not victor’s justice.
16. The Special Rapporteur condemns in the strongest terms the rise of nationalism and right-wing extremism in Croatia, as shown in recent mass demonstrations in Split and elsewhere in support of Mirko Norac, a former Croatian Army General charged with war crimes committed in the Gospic area. Such demonstrations will pose a great danger if allowed to go unchallenged. Extremism has also been evident in hate-based articles in Slobodna Dalmacija, a Split-based government-owned newspaper. The Special Rapporteur calls on the media in Croatia to refrain from promoting discrimination, intolerance and hatred and to take measures to promote reconciliation.”
“It is not the Appellants’ case that the Special Rapporteur was reporting on new events that had taken place since the oral hearing before the IAT. The importance of the material was that it was the latest objective opinion of an important international expert on the significance of changes since January 2000 and whether there was a continued risk of discriminatory ill treatment of Serbs by the local state in the light of the experience of the previous few months. It was the freshness of that opinion, and not the reporting of new undigested events that was significant.”
“Mr Justice Collins is almost certain that he did have these reports and is content that the Court of Appeal should approach the appeal on the basis that they were before the appeal at that stage.”
That was a wholly proper and responsible response by the President.
THE ‘ARIF’ POINT
“… ethnic Serbs are very likely to suffer persecution and discrimination based on ethnicity. Our Embassy in Zagreb has confirmed that this is so, and it has also been confirmed in a more recent report by the Special UN Rapporteur.
While not every case of an ethnic Serb will meet the Convention criteria, caseworkers should be aware that the likelihood is that many ethnic Serbs will be able to make a case for asylum under the Convention and each application should be considered very carefully before reaching a conclusion.”
“55. That passage draws attention to the course that appellate proceedings are likely to follow. The appellant is likely to focus on the circumstances prevailing at the time that the Secretary of State refused his application for asylum. If he demonstrates that at that time he was a refugee, the evidential burden will shift to the Secretary of State to demonstrate that circumstances have changed so that he has ceased to be a refugee.”
ARGUMENTS AS TO THE IMPACT OF THE SR REPORTS
“An example of the well-founded suspicion that the Croatian authorities could not be relied upon concerns the designation of ‘war crimes suspects’. Although an Amnesty Law was introduced, the application of its provisions has not been reliable. Originally, the Croatian authorities issued a list of 811 individuals excluded from the Amnesty on the grounds that they were suspected of having committed war crimes and crimes against humanity. This list was later reduced to 150 and eventually to 25, the current figure for those officially excluded from the Amnesty and against whom indictments stand in Croatia.”
“16. In our view it is crucially important to consider the numerical element of the evidence before us. It is our experience that, in Croatian cases in particular, there is a tendency to represent worrying individual cases as though they were the norm. There is no internal reason to think that the statements made by the Special Rapporteur are merely intended as examples…
17. The number of arrests of Serbs for war crimes is said to be ‘large’… and indeed it is unacceptably large if it is in truth based primarily on ethnicity. It is not, however, very large in comparison with the numbers said to figure on lists, in particular the lists said to be available on the internet. Twenty-eight arrests in the period covered by the supplementary report might indicate an average of about 120 per year. Some of the individuals arrested will no doubt be released, as were five of those detained at Baranja… Some of those arrested are presumably genuinely thought to have some guilt for atrocities that undoubtedly took place. The number of arbitrary arrests resulting in undue detention or an unfair trial or an improper conviction cannot, in absolute terms, be large. The number of actual convictions is tiny.
18. Looking at this evidence as a whole as we do, although we share the concerns about individual cases, we see no reason to depart from the general assessment made by the Tribunal in paragraphs 34 – 36 of S. Our view is that the evidence now produced (if it be the case that the Tribunal did not consider it) supports the conclusion reached there. The risk of persecution as a result of these arrests is so small that it can in an ordinary case be disregarded.”
CONCLUSION ON THE SR REPORTS ISSUE
THE APPLICATION FOR PERMISSION IN SN’s CASE
“Turning to the question of discrimination in employment, it may well be that the appellant has been discriminated against in the past but again, for the reasons which are set out in the S determination and, whilst accepting that the appellant may well have been discriminated against in her employment prior to leaving Croatia, we do not consider, for the reasons which are set out in the S determination, that there is a reasonable likelihood of such discrimination being sustained were the appellant to return now.”
But at paragraph 26 of the S determination the IAT had said:
“There can be no doubt that, despite the improvements, grave difficulties remain for Serbs. There is general discrimination which means that, in a country which has the most serious economic difficulties and high levels of unemployment, Serbs find themselves more likely to be out of work and deprived of access to any state assistance. Homelessness remains a major problem…”