United Kingdom Asylum and Immigration Tribunal

CA (Human Rights-Military Service-SEntence)Turkey [2002]UKIAT 06709

HX44613-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 17 September 2002

Date Determination notified: 20 February 2003

Before
Mr H J E Latter (Chairman) Mrs J Harris
Between

 

CA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr R Scannell of Counsel instructed by Brar & Co., Solicitors. For the respondent: Ms C Paddick, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. This is an appeal by Cengiz Aydogdu, a citizen of Turkey, against the determination of an Adjudicator (Mrs F M Kempton) who dismissed his appeal against the respondent's decision refusing to grant him leave to enter following the refusal of his claim for asylum.

2. The appellant claimed asylum on 21 February 2001. He said that he had travelled from Turkey to the United Kingdom by lorry, but he did not know which countries he had travelled through. He claimed to have suffered persecution in Turkey because he was an ethnic Kurd. He had been detained on three occasions. When he reached the age of 20 he was supposed to report for military service but he did not do so. He went into hiding for three years using his brother's identity. In November 2000 he considered that he could not continue using a false identity card and made arrangements through an agent to come to Europe.

3. The respondent was not satisfied that the appellant was entitled to asylum for the reasons which he has set out in his letter dated 26 April 2001. The appeal against this decision was heard by the Adjudicator on 13 February 2002.

4. The appellant gave oral evidence to supplement his written statement. The Adjudicator has summarised his account in paragraphs 6 – 11 of her determination. The appellant said that he had been arrested on two occasions in 1993. On the first occasion he had been detained for 36 hours without food or drink. He was also assaulted and sustained a broken tooth. He had cuts and bruises all over his body. In late 1993 he was woken up by the police who had kicked down the front door. He was dragged out of bed and taken to the police station. He was kept in a cell for 28 hours and then released. There was a further incident in 1994 when he was arrested after a football match but it turned out that this was a case of mistaken identity and he was released. In August 1997 he received his call-up papers. He could not face doing this as he considered that by being in the Turkish army he would be likely to be sent to an area where he would be expected to kill Kurdish people and he was not prepared to fight against his own people. He went into hiding and became a fugitive for four years, living in Istanbul using his brother's identity card. In November 2000 he made arrangements to leave. He is in fear of returning to Turkey. He has spoken to his family and has been informed that the police still look for him as he has failed to attend for military service.

5. The Adjudicator also heard evidence from the appellant's wife whom he married in November 2001, having met her in June 2001. His wife had a son aged 13 and a daughter aged 8.

6. The Adjudicator accepted the appellant's version of events about what had happened to him in Turkey. She considered that any persecution which had been sustained by the appellant was so long ago as to be of limited value to him in claiming asylum on that ground. The last incident had been in 1994. It appeared that he had lived in relative safety for three years from 1994 to 1997 and that when he received his call up papers, he managed to evade the draft successfully by using his brother's identity card. He left Turkey because he feared that he might be caught.

7. She was not satisfied that he was at risk of persecution on return nor that there were substantial grounds for believing that he would be subjected to treatment contrary to Article 3. As an evader from military service, he would be liable to imprisonment for a period of between six months to three years. She noted from the background evidence that the appellant was not alone in avoiding military service as apparently there are up to 250,000 people who have done so. She considered that the risk of imprisonment did not invoke Article 3 of the Human Rights Convention. She went on to consider Article 8 in the light of the appellant's marriage but came to the view that his marriage did not have the quality of permanency which she considered necessary as they had only been married for a few months. Accordingly, she dismissed the appeal.

8. The grounds of appeal assert that the Adjudicator was wrong not to find that there would be a breach of Article 3. The appellant as a draft evader risked a period of imprisonment. There was evidence that prisoners were subjected to serious ill treatment. There was poor medical care and concern about over crowding. At the hearing the Tribunal gave the appellant leave to vary his notice of appeal to include a number of further grounds. It is argued that the decision of the Court of Appeal in Sepet and Bulbul [2001] Imm AR 452 is wrong. Permission has been given to appeal to the House of Lords, but in the meantime, as Mr Scannell accepted, the Tribunal is bound by the judgment of the Court of Appeal. The second ground is that the appellant is a refugee because at the time his liability for military service arose (August 1997) the Turkish military were engaged in acts contrary to the basic rules of human conduct of a type condemned by the international community. To be imprisoned for his failure to serve at that time would be persecution.

9. Mr Scannell submitted firstly that the cumulative factors relating to the appellant were such that he would be at risk on return. He had been detained in 1993 – 1994. He had been suspected of involvement with the PKK: see paragraph 11 of the reasons for refusal letter. He would not be regarded as just an Alevi Kurd but someone with a history of detention and suspected separatist sympathies. In addition he had evaded military service and had been a fugitive for four years. The Adjudicator had accepted his evidence. If he returned, there was a real risk of detention and imprisonment for a period of up to three years. He risked being detained in a house of correction. In the light of the background evidence there was good reason to fear ill treatment.

10. Mr Scannell's second submission was that when the appellant was called for military service in 1997, he would have been required to serve in an army committing acts condemned by the international community and contrary to the basic rules of human conduct. Sepet and Bulbul had established that an objection to military service by itself did not amount to a convention reason under the Refugee Convention, but it was clear that certain categories of military service could give rise to a claim for refugee status. It would be wrong to require someone to serve in an army engaged in conduct condemned by the international community. This was not a case of the appellant being opportunistic. He had not been prepared to fight against his fellow Kurds or take part in the kind of behaviour being perpetrated in 1997 – 1998.

11. Ms Paddick submitted that the Adjudicator's conclusions that the appellant would only be of interest to the authorities because he had failed to attend for military service were properly open to her. His detentions had been in 1993 – 94. He had not come to the attention of the authorities between 1994 and 1997. It was not established that there would be any record of his detentions, nor would they be regarded of any significance. He would not be regarded as a separatist. She referred to Faith Akan [2002] UKIAT 01111. If the appellant had undertaken military service in 1997, it could not be shown what kind of activities he would have been involved with. In reply, Mr Scannell referred to paragraph 171 of the UNHCR handbook and submitted that the appellant was entitled to say that he would not be associated with the kind of conduct being carried out by the Turkish army in 1997 – 98. It was not a case of rogue elements within the army carrying out unauthorised activities but a state policy of conduct which had been condemned by the international community.

12. The Adjudicator accepted the appellant's account of his failure to undertake military service and his continued attempts to avoid military service by using the identity of his brother. There appears to have been no particular incident which led him to leave Turkey, save the fact that in November 2000 he came to the belief that it was too dangerous to continue using a false identity. However, the fact remains that the appellant has, on the Adjudicator's findings, evaded military service and for this reason would be at risk of detention and prosecution on return. The penalties are on a sliding scale, varying with the length of time between the arrest and the date when he was obliged to start military service. A person arrested after three months is sentenced to six months to three years heavy imprisonment: paragraph 4.32. A Report from the Dutch Ministry of Foreign Affairs reports that military judges in general impose minimum sentences. It is also reported that as a general rule, prison sentences of less than one year can be commuted into a fine. Prison sentences for evasion of registration/examination or enlistment, or for desertion are generally commuted into fines which must be paid after the end of military service. However, heavy prison sentences for evasion lasting longer than three months without giving oneself up may not be commuted into fines. In paragraph 5.86, the CIPU Report deals with the return of draft evaders. There is little reliable information on whether or not a draft evader sent for military service having returned to Turkey is likely to suffer ill treatment.

13. The Tribunal agree with the Adjudicator's conclusions that the only interest the authorities are likely to have in the appellant is as a result of his draft evasion. The appellant was arrested on two occasions in 1993. The third arrest in 1994 was a case of mistaken identity. The Tribunal do not accept even if these detentions have been recorded, that there is any reasonable degree of likelihood that the appellant would be regarded as a suspected separatist, particularly in the light of the improved situation in Turkey following the cessation of hostilities by the PKK.

14. The risk to the appellant is of prosecution for failing to undertake his military service. On the evidence before the Tribunal, there is a real risk that he will be detained for a period of heavy imprisonment of between 6 months and three years. The evidence tends to suggest that the detention will be nearer 6 months rather than 3 years, but it will still be heavy imprisonment and on the evidence before us, cannot be commuted into a fine. The Tribunal do not accept that the appellant will be treated any differently from any other draft evader. Whilst the conditions in a house of correction may be harsh, the Tribunal are not satisfied that they cross the high threshold to establish a breach of Article 3.

15. This leaves Mr Scannell's second argument. He submits that any period of imprisonment would be persecution as the appellant would have been required in 1997 – 98 to undertake military service which contravened basic human rights and was condemned by the international community. As we have already indicated, the Tribunal is bound by the Court of Appeal's judgment in Sepet and Bulbul but it is clear from paragraph 61 of the judgment of Laws LJ that there are circumstances in which a conscientious objector may rightly claim that punishment for draft evasion would amount to persecution: where the military service to which he was called involved acts with which he may be associated which are contrary to the basic rules of human conduct, where the conditions of military service are themselves so harsh as to amount to persecution on the facts and where the punishment in question is disproportionately harsh or severe. In this case there are two issues which arise. The first is whether the appellant was called for military service which may have resulted in him being associated with acts contrary to the basic rules of human conduct and secondly whether the imposition of punishment now would amount to persecution.

16. The first issue involves showing that the appellant reasonably feared that he would be required to engage in such condemned actions, but also that there was more than a fanciful chance that such a fear would eventuate in fact: see paragraph 98 of the judgment of Laws LJ in Sepet and Bulbul. In support of his claim that the appellant would be associated with military service contrary to the basic rules of human conduct Mr Scannell submitted that in 1997 and 1998 appeals were being allowed by Adjudicators and the Tribunal on this very ground. He points to a determination of the Tribunal in Ince (17744) heard on 21 April 1998 where the Tribunal was satisfied that the activities of the Turkish military had been internationally condemned. That Tribunal had been referred to a decision of the Tribunal in Gokay (14233). The Tribunal were also referred to Ekinci (20085) where the evidence of human rights abuses by the Turkish military was considered.

17. There is an issue as to whether the appellant has to show that there is a real risk that he, personally, would have been engaged in such activities or whether he and presumably every other draft evader during this period is entitled to say that he did not wish to be associated with such activities.

18. The Tribunal accept the principle that no one can be required to participate in hostilities which contravene the basic rules of human conduct or which are internationally condemned: see for example Drvis (13129) and more recently Foughali (00/TH/01513). The issue is whether the appellant would have been required to be involved in any such activities. Although the likelihood seems low, the Tribunal cannot on the evidence before us, dismiss it as speculative. The policy of the Turkish army, albeit against a determined and vicious enemy, did result in international condemnation as it involved a programme of compulsory village clearances and the large scale displacement of the Kurdish civilian population.

19. According to the evidence before the Tribunal, the appellant does not have the option of undertaking his military service now and thereby avoiding prosecution. There is certainly no evidence of any amnesty for draft evaders. It is clear that the Turkish authorities take the issue of draft evasion seriously, despite the large number of draft evaders referred to earlier in this determination. There is a procedure for depriving draft evaders of their citizenship. There is no evidence to suggest that any distinction would be drawn by the Turkish authorities between those who evaded the draft during a period when the hostilities were condemned by the international community and subsequent periods after the cessation of hostilities in 1999.

20. Mr Scannell's submission put at its simplest, is that any form of imprisonment would be wrong for someone who evaded the draft because he genuinely objected to taking part in activities which were internationally condemned and were contrary to the basic laws of human conduct. The Tribunal accept that this is a valid proposition and that in such circumstances punishment would amount to persecution for a convention reason, an actual or imputed political opinion. In the light of the Adjudicator's findings of credibility, we are satisfied that the appellant did have a genuine objection to this particular type of military service and we are satisfied on the evidence before us that there was a real risk that he might have been involved in such activities. To be punished for a refusal to serve in the military in such circumstances, would amount to persecution.

21. In these circumstances and on this ground only, the Tribunal have come to the view that this appeal should be allowed.

    H J E Latter

    Vice President