QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NEZIR KOCEKU||(CLAIMANT)|
|SECRETARY OF STATE FOR HOME DEPARTMENT||(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)
MR A MCCULLOUGH AND MISS K GALLAFENT appeared on behalf of the DEFENDANT
Crown Copyright ©
"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."
"The Secretary of State may by order add a State or part of a State, to the list in subsection (4) if satisfied that -
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State of part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention."
(2): that the Secretary of State must consider the factual substance and the detail of the claim;
(3): he must consider how it stands with the known background data;
(4): consider whether in the round it is capable of belief;
(5): if not consider whether some part of it is capable of belief.
(6): consider whether if eventually believed in whole or in part it is capable of coming within the Convention. If the answers are such that the claim cannot, on any legitimate view succeed, then the claim is clearly unfounded. If not, not.
(1) More particularly, it has been submitted that notwithstanding the improvements which have taken place in Albania, for example, by the establishment of reconciliation bodies, when taken with the facts of his case do give rise to a case where a legitimate view could be formed that there was an insufficiency of protection for him.
"13. The Secretary of State is therefore to believe that this demonstrates that blood feuds are neither condoned, sponsored or supported by the authorities in Albania and redress is fully available from a variety of sources."
"The Secretary of State therefore believes that you should have pursued your complaints though the channels available to you in Albania rather than seeking sanctuary in a foreign country."
"The Secretary of State notes that you claim that your father approached village elders with a request that they mediate in the blood feud in which your family is involved. You say that the other party did not want to settle the feud, as both parties had suffered from one death each. Your father informed you of this refusal to settle about 8 years ago, after your paternal uncle was killed. You have never personally contacted the Blood Feud Reconciliation Committee yourself, and claim never to have heard of it. Given the serious nature of the blood feud in which your family has been involved, the Secretary of State is of the view that it would have been open to you to have sought their assistance before leaving Albania with a view to settling the feud. Had you done so the Secretary of State considers that the assistance offered by the Blood Feud Reconciliation Committee would have been made available to you."
"Accordingly, the Secretary of State considers that there were avenues of redress which you could and should have pursued before seeking international protection."
"The Secretary of State is aware that despite efforts by the Albanian government to wipe it out, the 15-century code of customs, the Kanun of Lek Dukajini, has reappeared throughout northern Albania, since the return of democracy. The code has been handed down orally through generations, and lays out a code of "laws" governing marriage, birth, death, hospitality and inheritance, which have traditionally served as the foundation of social behaviour and self-government for the clans of northern Albania. In particular, the Kanun regulates killings in order to stop the total annihilation of families."
"According to several sources, a range of factors has contributed to the re-emergence of blood feuds, "gjakmarrja", especially in northern Albania, such as the weakness of state institutions, a law and order vacuum, and a lack of trust in the law. Most ongoing vendettas stem from disputes over land and water rights. Many killings continued to occur throughout the country as the result of individual or clan vigilante actions connected to traditional "blood feuds" or criminal gang conflicts."
"The Kanun has been used as a system for administering justice in northern Albania, which historically has remained isolated from central government law. Today, revenge killings in the name of the Kanun have taken on threatening proportions. A recent survey on the Kanun by the Independent Social Studies Centre, Eueka, expressed concern that many killers were using the rules of the Kanun as a covered to commit ordinary crime. In one sense it could be argued that northern Albanians are resorting to the Kanun in order to fill the law and order vacuum. In most cases, however, it is not the traditional rules of the Kanun that are being applied but rather a self-selected interpretation. The fact it is a means of settling accounts amongst gangs of traffickers, smugglers, and other criminal elements who, in the absence of official law and order, can use the fear, respect and moral justification associated with the Kanun to terrorise people into a code of silence."
"It would be difficult to separate the issue of blood feuds from the larger problem of the lawlessness in Albania, especially in the mountainous north of Albania and in remote areas."
"A survey conducted by the Law Faculty of Tirana University in March 2000 showed that 210,000 Albanians, (six per cent of the total population) were "affected" by blood feuds including about 1,250 people locked in their homes for fear of being killed. The Albanian Human Rights Group reported that during 2001 2,750 families were self-imprisoned at home and that 900 children were prevented from attending school due to fear of revenge. According to the Ministry of Public Order, more than 14 individuals were killed in blood feuds in 2001. Figures published by the National Mission for blood Feud Reconciliation in August 2000 stated that 756 blood feuds had been reconciled, allowing the people involved to return to put an end to self-confinement at home. The missioners explained that the root of this problem lie in the ill-intentioned interpretation of the Kanun and in the reluctance of citizens to obey the laws of the state."
"According to the Ministry of Public Order, more than 29 individuals were killed in blood feuds which was practised by individuals particularly in the northern part of the country. Under the Kanun, only adult males are acceptable targets for blood feuds, but women and children often were killed or injured in the attacks. The Albanian Human Rights Groups (AHRG) estimated that 1,400 families were self-imprisoned at home and that 140 to 400 children were prevented from attending school due to fear of revenge."
"The Government in Albania are functioning and there is a police force. It may not be functioning well, because it is largely untrained, but the Country Information Police Unit report shows that training has started."
"Having reviewed the objective evidence before us, the Tribunal believed that the Adjudicator was correct to find as he did that the Albanian Government does not have in place a system which offers a sufficiency of protection."
"We have to regard the CIPU report as a very much more balanced assessment of the present situation than Mr Robertson's letter. While blood feuds clearly still represent a serious problem in Albania, there is clear evidence that the authorities, and others, are taking effective steps to deal with it, by reconciliation where possible, and by armed suppression where necessary. In the light of the CIPU report, we do not consider the Adjudicator justified in his uncritical acceptance of Mr Robertson's letter. We should consider him entitled to take the view (see his 23, where as he says he is "briefly dealing with the appellant's human rights") that having to leave indefinitely in hiding might [make the claimant's return] amount to "inhuman or degrading treatment." Our view is that this sort of existence would not be necessary: even if a measure of discretion were required when the claimant first went back (as to where he went, and how he drew attention to himself), over the long term effective protection, in terms of Horvath  Imm AR 552 (HL), would be available for him if he chose to seek it."