COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
SIR MURRAY STUART-SMITH
ROLANDAS SVAZASAppellant - and - THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
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)
Mr. Robin Tam (instructed by Treasury Solicitor for the Respondent)
AS APPROVED BY THE COURT
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Lord Justice Sedley:
“As we understood Dr Popovski’s evidence, in essence she was saying that from the point of view of the government, matters such as the events that occurred to the Appellant should not happen and that they were trying to prosecute officers for offences of this kind. This is confirmed by the objective evidence elsewhere. For example it is stated at paragraph 4.28 of the Country Assessment for October 2000 that police sometimes beat or otherwise physically mistreat detainees. The local press have reported that incidents of police brutality are becoming more common. In many instances, the victims reportedly are reluctant to bring charges against police officers for fear of reprisals. A total of 79 officers were dismissed for illegal or fraudulent activities in the first six months of 1998 for a variety of offences, compared with 182 for all of 1997. During the first six months of 1999 four police officers were charged with abuse of power and one officer was sentenced. The Ministry of Interior stated that the district police and inspectors are the most negligent in the force. To strengthen the integrity of the police the Inspectorate General of the Ministry of the Interior was given administrative autonomy in May 1997. It is said at page 2 of the State Department Report that in 1999 the Inspectorate General was reorganised into an office of the Inspector General, and some functions of the inspectorate were delegated to the Internal Investigations Division of the police department. The Inspector General cannot investigate abuses of his own authority but can act only on the order of the Minister. Mr Jones [Ms B’s counsel] referred us to the fact that at 5.9 of the Country Assessment it is said that a key exception to the normal co-operation of government authorities local NGOs is the Ministry of Interior, which has continually refused to release information on police brutality and statistics on corruption based incidents. However the most recent State Department Report notes at page 6 that a key exception in the past of this co-operation was the Ministry of Interior which continually refused to release information on police brutality and statistics on corruption related incidents. It says however that the Ministry is more willing to share such information however it has released few statistics or reports. We note also the association of the defence of human rights in Lithuania, an umbrella organisation for several small human rights groups all of which operate without government restriction.”
“Although we were not addressed on this point specifically, it seems to us that it is impossible to consider this case without referring to the decision of the House of Lords in Horvath v Secretary of State for the Home Department which is reported at  INLR 7 (the IAT hearing) at  INLR 15 in the Court of Appeal, and  3 WLR 379 in the House of Lords. It is clear from this judgement that in considering the ability of the state or its willingness to protect, it is a pre-requisite that the state must have in place a general system of criminal law enforcement for its citizens from which by its terms, the asylum applicant or the class to which he belongs is not excluded. This requirement is met by considering whether the duty to its citizens at large is met by the provisions made. It is clear from our review of the objective evidence in this case that, albeit underground activity by the Communist Party is considered illegal, there is no suggestion that the Lithuanian legal system and in particular its general system of law enforcement is not available for most communists and non-communists. Dr Popovski made it clear that the authorities would say that activities such as happened to the Appellant in this case should not occur and that it is aware of the fact that local police were involved in activities which are contrary to Lithuanian law and they are trying to prosecute these officers. There is evidence before us which we have described above of prosecutions taking place albeit that there are difficulties and sometimes people are concerned about reprisals. Nevertheless, even bearing in mind what happened to the Appellant in Lithuania, we consider that the system in place is one which offers her sufficiency of protection. Internal flight would not appear to a possibility, but we do consider that the machinery is there for her to take action and to report and seek the prosecution of any police officer who does not treat her in accordance with the provisions of the law in Lithuania, and we consider that as a consequence she has not made out her claim to be in need of international protection.”
“9. …. It is clear that the appellant knew that he belonged to an illegal organisation, knew that the activities upon which he was engaged were illegal and was not surprised that the police were interested in him. We entirely agree that he might well be prosecuted upon return by reason of his illegal activities …
10. The question therefore is whether, assuming the prosecution is successful and he is sentenced to detention, that would amount to persecution. No point has arisen before us as to whether or not any sentence might be unduly harsh in relation to the nature of the offence committed. No evidence has been put before us as to the length of sentences now passed for this type of crime and we are therefore not in a position to make any judgment as to whether or not any sentence would be so harsh to amount to persecution. We concentrate entirely on the question whether or not he would suffer maltreatment at the hands of the police, whilst in prison, either awaiting trial or following sentence, and whether that maltreatment amounts to persecution because it arises from his membership of the Communist Party.”
“14. Mr Middleton [counsel for Mr Svazas] has conceded that there is in place a very soundly prepared and based constitution which does protect minorities and does observe the provisions of the Human Rights Convention. The essence of his argument, however, is that the constitution is not enforced at grass roots level and this permits police brutality directed at members of the Communist Party such as this appellant. This submission has to be considered within the context of the Court of Appeal judgment in the case of Horvath. On the basis of the documentation before us and also Mr Middleton’s admissions, we are satisfied that there is in place a constitution and a judicial and criminal legal system which does ensure protection of the citizens of Lithuania. It does not discriminate against any minority groups and in particular members of the Communist Party. The US State Department Report makes it clear that as part of this system there is a proper judicial system, albeit a somewhat young one, and in the process of being developed, which does ensure impartial trials and proper legal representation.
15. We are satisfied that the government accepts that there is a degree of police brutality and we entirely accept Dr Popovski’s statement that this arises out of prejudice against what Lithanians endured under the previous Soviet regime. However, we are also satisfied that the government has taken steps to ensure that there is proper discipline of these officers exceeding their powers and perpetrating brutality upon detainees. We fully accept that the system cannot be flawless as thing are at the moment in Lithuania i.e. democracy emerging after many years of Communist rule. But we are totally satisfied that what acts of brutality are perpetrated are not condoned by the authorities and that proper systems are in place to obtain redress against the perpetrators.
16. We fully accept that, largely arising out of Dr Popovski’s comments, individual policemen might well prove to be vindictive against the appellant were he to be taken into custody by reason of his Communist allegiance, but these are transgressions by individuals, contrary to any codes of discipline issued by the police or Ministry of Interior and are capable of redress.
17. Arising out of this finding it follows that the appellant, although he may find prison conditions poor and acts of brutality perpetrated against him, will be no worse than any other prisoner detained for any ordinary criminal offence for which he has been sentenced. The system has clearly got many imperfections, not least of which is the conduct of the police towards prisoners. We are not satisfied that the appellant would suffer more adverse conditions and greater brutality by virtue of his membership of the Communist Party and that such action would be condoned by the authorities and that he would not have any form of redress were he to be singled out from amongst any fellow prisoners.”
Law: (a) persecution and protection.
“owing to a well-founded fear of being persecuted for reasons of … political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”
The meaning and application of the latter part of this provision are increasingly prominent in the recent jurisprudence of the Convention.
“The most obvious form of persecution is the abuse of human rights by organs of the State, such as the police or military. This may take the form of either pursuance of a formally sanctioned persecutory scheme, or non-conforming behaviour by official agents which is not subject to a timely and effective rectification by the State. In such cases, it is clear that the citizen can have no reasonable expectation of national protection, since the harm feared consists of acts or circumstances for which the governmental authorities are responsible.”
The concept of “non-conforming behaviour by official agents which is not subject to a timely and effective rectification by the state” seems to me give a precise edge to the Convention scheme in the present context, and to make a key distinction between state and non-state agents of persecution. While the state cannot be asked to do more than its best to keep private individuals from persecuting others, it is responsible for what its own agents do unless it acts promptly and effectively to stop them.
“… the two tests are nevertheless linked to each other by the concepts which are to be found by looking to the purposes of the Convention. The surrogacy principle which underlies the issue of State protection is at the root of the whole matter.”
“… in the context of an allegation of persecution by non-state agents, the word “persecution” implies a failure by the State to make protection available against the ill-treatment or violence which the person suffers at the hand of his persecutors. In a case where the allegation is of persecution by the State or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community.”
But, possibly having in mind the kind of case which has arisen here, Lord Hope goes on to say:
“… The application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home State. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home State. Rather it is a practical standard, which takes proper account of the duty which the State owes to all its nationals.”
Lord Clyde (at 510) similarly speaks of:
“… a system of domestic protection and machinery for the detection, prosecution and punishment [of persecutors] … More importantly, there must be an ability and a readiness to operate that machinery.”
“Moreover, the existence of some policemen who are corrupt … does not mean that the state is unwilling to afford protection. It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy.”
The converse presumption, however, is not necessarily as strong: a state which is willing to afford protection may be unable to do so. Willingness to control abuse is, as Stuart-Smith LJ says, a presumptive feature of a democracy; but in a country like Lithuania the ability to do so may well be impeded by the legacy of the very past from which it is extricating itself.
Law: (b) political opinion
“… where a person to whom a political opinion is imputed or who is a member of a race or social group is the subject of sanctions that do not apply generally in the state, then it is more likely than not that the application of the sanctions is discriminatory and persecutory for a Convention reason. That is where there is a prosecution followed, in the event of conviction, by a sentence imposed by a court. The inference of persecution for a Convention reason is all the stronger where, as in the present case, the sanction is torture by state authorities which is not even lawful by the law of the state concerned.”
Mr Southey has sought to rely both on this passage and on reasoning to similar effect in the judgment of Waller LJ at paragraphs 183 and 184 in Sepet and Bulbul v Home Secretary  INLR 376, 440; but I do not think that either can help him given the assumed facts in the present appeal.
Law: (c) the two tests related.
“….I consider that the obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case [my italics], the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection.”
One sees readily that a fear of persecution by non-state agents may not be well-founded if the state is both able and willing to provide protection against it, and that to this extent protection may enter into the fear test. What, with respect, has caused occasional difficulty is Lord Hope’s concluding paragraph:
“Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests - the “fear” test and the “protection” test - is satisfied. The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is “persecution” within the meaning of the Convention. At that stage the question whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surrogacy.”
Lord Clyde (at 514) put it this way:
“… it seems to me inevitable that the persecution to which the Convention refers is a persecution which takes account of the protection available. Of course where the state is itself through its agents the persecutor, the question does not require to arise. Active persecution by the state is the very reverse of protection.”
“There may possibly be countries where a fear of persecution, albeit genuine, can so readily be allayed in a particular case by moving to another part of the country that it can be said that the fear is either non-existent or not well founded, or that it is not ‘owing to’ the fear that the applicant is here. But a clear limit is placed on this means of negating an asylum claim by the subsequent provision of the Article that the asylum seeker must be, if not unable, then unwilling because of ‘such fear’ - ex hypothesi his well-founded fear of persecution - to avail himself of his home state’s protection. If the simple availability of protection in some part of the home state destroyed the foundation of the fear or its causative effect, this provision would never be reached.”
Accordingly it seems to me that the distinction authoritatively drawn in Adan between the fear test and the protection test, albeit glossed in non-state agent cases by Lord Hope’s concluding remarks in Horvath, remains material to cases such as the present.
30. Our attention has been drawn to the recent decision of this court in Wierzbicki v Home Secretary  Imm.A.R.602. The appellant was a Polish gypsy whose case was that his family and their home were being repeatedly attacked not only by hostile neighbours but by police officers whom they called on for protection. Schiemann LJ put the issue in this way:
“In the paradigm case the persecutor is the government or its agents. We however are concerned with the case where the persecutors are not the government as such, but intolerant fellow citizens, including some policemen. The government as such is opposed to the actions of the persecutors.”
The appeal failed on the ground that the IAT had applied the right test of protection and had come to a tenable conclusion against the applicant. At the date of the hearing before us, the appellant was petitioning the House of Lords for leave to appeal and the Home Secretary had been invited to make submissions in opposition. The essence of the case advanced in the petition is that on the evidence the police should have been treated as state agents of persecution against whose acts the state afforded insufficient protection. To this extent, as the above citation from Schiemann LJ shows, the case starts from a lower factual base than the present case because there the police activity had been treated as the work of rogue officers and not - as here - systemic abuse. The Home Secretary’s opposition to the grant of leave has accordingly been based primarily on the submission that the decision was an unexceptionable application of principles established Horvath to findings of fact.
“whether, assuming the prosecution is successful and [the appellant] is sentenced to detention, that would amount to persecution.”
This, with respect, was not the question. It is the kind of question which arises in cases where, for example, people are repeatedly arrested on the basis of their ethnicity but are charged with criminal offences. Here neither the legality nor the political neutrality of the repeated detentions of the appellant was put in issue: both were assumed. What remained in issue was whether as a member of the Communist Party in custody Mr Svazas faced particular treatment which (a) amounted to persecution for a Convention reason and (b) was treatment by state agents which the state, despite its endeavours, could not control.
Sir Murray Stuart-Smith:
(i) Was the ill-treatment to which this Appellant was subjected, assuming it was sufficiently serious to amount to persecution, for a Convention reason, or was it, as the tribunal thought, no more than what all detainees suspected of illegal conduct, are likely to face at the hands of the police?
(ii) Seeing that the ill treatment was at the hands of the police, who are normally to be regarded as the agents of the state, did the home state afford sufficient protection against it, such that the appellant does not require the surrogate protection of the UK?
“A practical standard which takes proper account of the duty the state owes to all its nationals ….” (per Lord Hope in Horvath  1 AC 489 500).
“A system of domestic protection and machinery for the detection, prosecution and punishment of [persecution] … More importantly there must be an ability and a readiness to operate that machinery” [per Lord Clyde at p 510]
And I venture to repeat what I said in the Court of Appeal in that case, which appears to have been approved by the majority of their Lordships:-
“To say that the protection must be effective suggests it must succeed in preventing attacks, which is something that cannot be achieved. Equally to say that the protection must be sufficient, begs the question, sufficient for what? In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. There may be many reasons why criminals are not brought to justice including lack of admissible evidence even where the best endeavours are made; they are not always convicted because of the high standard of proof required, and the desire to protect the rights of accused persons. Moreover, the existence of some policemen who are corrupt or sympathetic to the criminals, or some judges who are weak in the control of the court or in sentencing, does not mean that the State is unwilling to afford protection. It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy.”
Although these statements are made in this context of non-state agents, they are equally applicable in the present case, provided it is borne in mind that where the police are concerned a higher standard of protection is required.
Lord Justice Simon Brown:
“… a practical standard which takes proper account of the duty which the state owes to all its nationals …” (Lord Hope at  1 AC 489,500)
“… a system of domestic protection and machinery for the detection, prosecution and punishment of [persecution] …. More importantly there must be an ability and a readiness to operate that machinery.” (Lord Clyde at 510).
a) Lord Hope at 497:
“In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents, the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme”;
b) Lord Clyde at 514:
“In that context [of deciding what is meant by persecution in the context of the Convention] it seems to me inevitable that the persecution to which the Convention refers is a persecution which takes account of the protection available. Of course where the state is itself through its agents the persecutor, the question does not require to arise. Active persecution by the state is the very reverse of protection. … It is in the context of persecution by third parties that the problem of protection becomes more significant.”