MI (Fair Trial, Pre Trial Conditions) Pakistan CG  UKIAT 02239
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 24 April 2002
Date Determination notified: 28 June 02
BeforeDR H H STOREY (CHAIRMAN)
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
" he might also be at risk of a possible revenge attack from members of the deceased man`s family who believe, rightly or wrongly, that the appellant was responsible for his death".
The issue of the Convention ground of political opinion
The issues of the charges against the appellant and the fairness or otherwise of any consequent trial
"The Appellant states that the charge against him is false, and that it has been filed on the basis of false accusations made against him by local members of a rival political party. Possibly that is so. However, that is a matter for the Pakistani Criminal Courts, not for me. I have not heard evidence from those who have accused the Appellant, and am therefore in no position to assess his guilt or innocence. That must remain a matter for the Pakistan Courts alone.
The Appellant states that he would not receive a fair trial on return from the Pakistani Courts. In considering that assertion, I have given careful consideration to the background material and other documentary evidence which has been placed before me. However I see no evidence to support that assertion. The Appellant also claims that the police would cause false evidence against him in order to secure his conviction rather than lose face by admitting that they had made a mistake. Once again, I have given careful consideration to the background material before me, but as before there is not the slightest support for the Appellant`s assertion that the Pakistani police would be prepared to swear away the life of an innocent man rather than admit that they had made a mistake. There is nothing in the evidence before me to indicate that the Appellant would not in fact receive a fair trial if he were to be brought to justice following his return on the charges files (sic) against him following the incident of 12 August 1995."
"Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice".
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
...". (emphasis added)
Relevant principles in assessing the issue of prosecution versus persecution.
"Whether a prosecution amounts to persecution depends on a consideration of all the factors. It is, in effect, a question of fact. It is not the case that every political activity is necessarily legal, but the adjudicator has to determine on the facts presented to him whether the prosecution in fact is really a disguised persecution".
"...recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights..."
"While it is true that genuine criminality is not a form of civil or political status which attracts protection, the criminal law is not infrequently manipulated as a tool of persecution".
"The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risk suffering a flagrant denial of a fair trial in the request country".
"So far as the question of fair trial is concerned, Article 6 can be engaged if an individual is to be removed from this country. That is made clear by the decision of the Tribunal in Kacaj following the Court of Human Rights decision in Soering v United Kingdom. But, it is only if the breach of Article 6 would be flagrant, that is to say that there would clearly be a thoroughly unfair trial, that Article 6 could be engaged. Again, it is not for the signatories to the Convention to impose their system on the entire world. One has to consider whether looking at again in the round, it can be said that the Respondent will be able to receive what amounts to a reasonably fair trial. So far as criminal charges are concerned, and the alcohol offences are criminal charges, as would be any charges relating from unauthorised leaving of the country or indeed from unauthorised escape from custody, if anything were done in relation to these student offences, there is no reason to believe that there would be any flagrant breach of Article 6 whatever may be the shortcomings, and there are shortcomings, of the Iran system of trial"".
Application of these principles to the facts of this case
The evidence in this case concerning the falsity or not of charges
The issue of ill-treatment by the police during pre-trial detention
"It is also clear from the background material before me that there is widespread corruption amongst the Pakistani police who are frequently suborned from their duty to the public and allow themselves to be influenced by those local politicians who happen for the time being to be in the ascendancy into taking improper action against members of rival parties. However there is no evidence before me one way or the other as to whether this situation has changed to any significant degree since the recent overthrow of the former Muslim League Government of Prime Minister Nawaz Sharif by the military government, which is currently in control in Pakistan.
I am therefore prepared to accept if the Appellant were to return to some part of Pakistan where the local police are under the influence of members of the rival PPP, and if he were to be seen to be active locally on behalf of the Muslim League, he might then run the risk of further harassment, either from the PPP members themselves or possibly from corrupt elements in the local police acting under their influence."
"Police and prison officials frequently use the threat of abuse to extort money from prisoners and their families. Certain individuals pay police to humiliate their opponents and to avenge their persona grievances."
"The suspended Constitution and the Penal Code expressly forbid torture and other cruel, inhuman or degrading treatment. Police however regularly torture and abuse people. Police routinely use force to elicit confessions, although there were fewer reports and greater police co-operation in investigating such incidents during 2000. Human rights observers suggest that because of torture, suspects usually confess to crimes regardless of their actual culpability".
"For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights".
The issue of the fairness or otherwise of the trial itself
The issue of any likely punishment
The issue of risk to the appellant of revenge attacks
DR H H STOREY