QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ELENICA MISHTO||(CLAIMANT)|
|THE IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J ANDERSON (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
Monday, 19th May 2003
"14) It is plain to me from the material in the appellant's bundle at pages 42 and 43 that there are women's organisations in Albania. Paragraph 2-1 at page 43 of the appellant's bundle it is stated that women have equal access to opportunities in Albania. At page 50 of the appellant's bundle under the heading violence against women there is much objective material to support the respondent's claim that there is a sufficiency of state protection in Albania for women who may be the victims of violence. This states that domestic violence has become a serious problem in Albania. During the communist regime it was never considered a public problem. Today the mentality that justifies domestic violence in Albanian families is still alive and influential. Women are considered inferior in their families. Women remain the targets of domestic violence. Against this there is in place a legal framework which is addressing the issue of domestic violence. This activity is prosecuted under the general crime of assault. Under the Code of Criminal Procedure domestic violence is prosecuted upon the complaint of the victim and the case is only closed when there is a withdrawal of the complaint. However the victim must also prepare the case herself gathering evidence and witnesses and presenting her case in court.
15) The police response to this offence is that their view is that a crime is committed from the moment of the assault. If the perpetrator is not immediately arrested, the victim should go to the police at which point the prosecutor, the attorney and the court become involved. There is a complaint by women's victims in surveys on domestic violence in Albania that records that the police treat the offence as a private matter and do not always intervene. At page 30 of the report in the appellant's bundle: Human Rights Watch World Report 2001: Albania: Human Rights Development, it states:
'However a number of changes have emerged and, recently, some training programmes have been organised to teach social workers, judicial police, police, prosecutors, etc. how to deal with cases of domestic violence. The Albanian Centre for Human Rights has recently organised training on 'Police and the Defence of Women'.
16) The report goes on to say that in Albania there is a counselling centre for women and girls. There is a service centre to help female victims of various types of abuse. The centre offers direct or telephone counselling. Since this centre was set up about four years ago there have been 4,300 phone calls demonstrating the high level of domestic violence but also the increase in public interest in this issue.
17) The above is a sample of the objective material that I considered in deciding this issue as a preliminary issue in the hearing. It is plain to me that there is a sufficiency of state protection available to this appellant should she be returned to Albania. This system of protection meets Horvath protection criteria as set out above. As I have stated above there does not need to be an absolute guarantee of protection to meet this criteria. There has to be a system of protection available to the appellant and a willingness to apply that on her behalf. I therefore find that the appellant's claim as stated in her asylum interview and in her statement does not disclose a well founded fear of persecution should she be returned to Albania because there is a sufficiency of state protection in her country that she could avail herself of should she be returned".
"Violence against women and spousal abuse are serious problems. In the country's traditionally male dominated society, cultural acceptance and lax police response result in most abuse going unreported. Rape is punishable by law, as is spousal rape; however, in practice spousal rape is not reported or prosecuted. The concepts of spousal rape and sexual harassment are not well established, and, consequently, such acts are not considered crimes. No government-sponsored programme protects the rights of women. An NGO maintains a shelter in Tirana for abused women, but the facility has the capacity to house only a few victims at a time".
"Violations of women's human rights continued unabated in Albania, as trafficking and domestic violence plagued women and girls throughout the country ... Domestic violence also devastated women's lives in Albania; nongovernmental organisations compensated for a lack of state response to the abuse by opening a shelter for battered women in Tirana with Italian funding".
"There are no specific legal provisions addressing domestic violence, which is prosecuted under the general crime of assault. Under the Code of Criminal Procedure, domestic violence is prosecuted upon the complaint of the victim and the case is closed upon the withdrawal of the complaint. The victim must also prepare the entire case herself: gathering evidence and witnesses and presenting her case in court. Law enforcement authorities do not begin the process without the women's consent. ('Domestic Violence in Albania' -- Study of the Minnesota Advocate Group for Human Rights 1996).
According to statements by women's victims and some NGO surveys on domestic violence, in most cases, the police treat the offence as a private matter and do not intervene."
"There are no specific laws addressing domestic violence in Albania. Domestic assault is prosecuted under the general assault statutes. Albania implemented a new penal code on June 1995".
"Under the Code of Penal Procedure, domestic violence is prosecuted by complaint of the victim and closed by withdrawal of the complaint by the victim . This means that the case is only brought if the victim files a complaint. The victim must also prepare the entire case herself. She must gather evidence and witnesses and present her case in court. The state does not assist with the prosecution ".
"I would hold therefore that, 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 hands of his persecutors".
"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 own nationals".
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said at  INLR 15, 26, paragraph 22:
'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.'
And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice 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 formulation does not claim to be exhaustive or comprehensive but it seems to me to give helpful guidance".