ITEMID: 001-109003
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: H.N. AND OTHERS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were born in 1969, 1995, 1998, 2004, 2006 and 2007 respectively and are currently in Sweden.
The applicants arrived in Sweden in May 2007 and applied for asylum and residence permits. Before the Migration Board (Migrationsverket) they essentially submitted the following. The first applicant had worked as a teacher. In December 2006 the first applicant, her sister and her adopted daughter had been raped in her home by five unknown men and at the same time a hand grenade had been thrown at her husband, P. The incident had taken place a few months after the couple had started enquiring of the authorities how it was that a man, G., who had been convicted of abusing their daughter A.B. (the third applicant) in 2000, had been released before serving his entire sentence. The authorities had told them to stop asking questions about the matter and shortly thereafter P. had started receiving telephone threats to the effect that the family would be hurt if they did not stop asking about G. The first applicant and P. had also suspected that P.’s phone was tapped. The first applicant suspected that G. had been released early from prison in order to spy on the FNL (Forces Nationales de Libération, at the time a rebel group) for the Government, for which reason the authorities would want to cover up his release by silencing the first applicant and her family. The first applicant added that P. and their adopted daughter had left Burundi in July 2007 due to continued threats and were currently in Angola. The applicants were convinced that, if returned to Burundi, they would be killed by those who had threatened them. Moreover, the first applicant was worried about how she would be able to protect B.B. (the sixth applicant) from it becoming known that she might be the result of the rape. The applicants submitted their passports as well as two medical certificates; one issued on 6 February 2000 which stated that the third applicant had been receiving care following sexual abuse and the other issued on 20 December 2006 which stated that the first applicant, her sister and adopted daughter had received care following a rape.
On 25 October 2007 the Migration Board rejected the application. It did not question that the first applicant, her sister and adopted daughter had been the victims of rape in December 2006. However, it found it unsubstantiated that men from the governing party had been responsible for the rapes and the threats against the family. It also considered that it was merely speculation by the first applicant that P.’s telephone had been tapped or that G. had been released early to work as a spy for the Government, as she had presented nothing to show that this was actually the case. In the Board’s view, having regard to what the first applicant had said during the interviews, it rather appeared as if the rapes were acts of revenge on the part of G., carried out by private persons connected to G. Here the Board noted that the first applicant had stated that they had reported the rapes in December 2006 to the police and that the police had commenced an investigation. It further observed that although sexual violence was a problem in Burundi, the number of rapes had decreased during 2006 while there was an increase in reports to the police concerning rape. Moreover, G. had been prosecuted and convicted of the abuse of the third applicant, which indicated that the Burundian authorities were willing and able to deal with the problem. Consequently, the Board concluded that the applicants were not in need of protection in Sweden. The Board also took into account that the case included five minor children, of whom the sixth applicant had been born prematurely in Sweden. However, she was developing well and there was no indication that there would be problems for her in the future due to the uncertainty as to the identity of her father. In conclusion, the Board considered that there were no exceptional reasons to let the applicants remain in Sweden.
The applicants appealed to the Migration Court (Migrationsdomstolen), relying on the same grounds as previously and adding that the police report concerning the rapes had not led to anything and that the authorities would not be able to protect them from their assailants. The first applicant stressed that the family had had a good life before the attacks and that they would not have left the country if they had not been forced to. From the way her assailants had spoken to her during the attack, she had understood that they were Hutus.
On 19 February 2008, after having held an oral hearing, the Migration Court rejected the appeal. Like the Migration Board, it first noted that the abuse of the third applicant had been investigated and the assailant tried and convicted. Moreover, the police were investigating the rapes of the first applicant, her sister and adopted daughter. Thus, the Burundian authorities were able and willing to help the applicants. The court further noted that the applicants had remained in Burundi for four months after the attack without being the victims of any further attacks and that P. had remained in their home until July 2006. In the court’s view, the reasons put forward for the attacks and the threats were pure speculation on the part of the first applicant and not substantiated. Hence, the applicants had failed to show that they were in need of protection in Sweden. Even having regard to the fact that the case involved children, the court considered that they could not be granted leave to remain in Sweden.
One lay judge (out of three lay judges and a professional judge) dissented. She considered that the first applicant had given a credible and coherent account and that she had thereby shown that she would face a real risk of being persecuted or ill-treated due to her gender if returned to Burundi. The applicants should therefore be considered as refugees.
Upon further appeal, the Migration Court of Appeal refused leave to appeal on 23 May 2008.
On 6 August 2008 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant’s husband had been arrested and taken to the security police, where he had been tortured. The Migration Board rejected the request on 21 October 2008. It held that the requirements for examining the request had not been met since, inter alia, the documentation submitted in support of the application consisted of photocopies which had low value as evidence. Moreover, it was not clear from the documents why the first applicant’s husband had been arrested. The decision was upheld by the Migration Court on 22 December 2008 and on 13 February 2009 the Migration Court of Appeal refused leave to appeal. It should be noted that the applicants have failed to submit these decisions to the Court.
In February 2009 the applicants lodged yet another request for residence permits in Sweden on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant was unable to care for her children because she was depressed and had been treated for this condition at the psychiatric unit at Säter hospital between 3 and 12 February 2009. The hospital had commenced treating the first applicant with medication and the treatment would continue for six months. The fourth, fifth and sixth applicants had been placed in a family home by the social services while the second and third applicants remained in the family’s apartment and took care of themselves. Thus, the applicants requested residence permits, or at least a stay of execution of the deportation order for six months.
On 27 February 2009 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no absolute impediments to the enforcement of the applicants’ deportation order.
In June 2009 the applicants lodged another new application for residence permits in Sweden. The first applicant claimed that she had been threatened by one of her assailants by text messages sent to her mobile phone in Sweden and she thought he had obtained the number through contacts with Hutus in Sweden. Moreover, her husband’s family had repudiated her because she had been raped and had had an illegitimate child as a result. The first applicant further invoked her poor mental health and stated that she had attempted to commit suicide by taking an overdose when the Swedish police had tried to deport her and her children at the beginning of June.
The first applicant submitted a medical certificate, dated 17 June 2009, by A.K., psychologist at the Red Cross in Hedemora, which stated that the psychologist had met the first applicant five times and that she had traumas from having been the victim of violence in Burundi. The first applicant showed symptoms of Post Traumatic Stress Disorder (PTSD) and depression for which she was taking medication. During the autumn of 2008 she had had a serious crisis reaction after she had been informed that her husband had probably died. She had attempted suicide, for which she had been treated at a closed psychiatric unit for ten days (in February 2009). According to the psychologist, the police had fetched the first applicant at her home in Sweden in June 2009 to detain her, awaiting the deportation. However, she had tried to commit suicide in the detention centre by drinking soap mixed with her medication. She had heard voices which had told her that her children had been killed and that she should kill herself. In the psychologist’s view, the applicant was now suffering from PTSD, depression with psychotic symptoms and acute stress.
On 23 June 2009 the Migration Board rejected the new request as it found that the applicants had invoked no new circumstances of importance but had only made certain additions and adjustments to their previous claims. Nor did it consider that there were impediments to the enforcement of the deportation order.
On the same day, the applicants’ lawyer submitted a medical certificate and an extract from the first applicant’s medical records from the Crisis and Trauma Centre at Danderyd Hospital, both dated 18 June 2009 and written by H.P.S., psychotherapist and docent in psychiatry.
According to the medical certificate, which was based on the medical records, the first applicant was taking antidepressants and sleeping pills. She heard voices which had prompted her to three suicide attempts. She fulfilled the criteria for PTSD and depression and was in need of treatment. In the doctor’s view, there were impediments to the enforcement of the deportation order due to the first applicant’s poor mental health, since being deported might cause her to lose her sense of reality and try to commit suicide again.
The Migration Board considered that this material should be considered as a new request for residence permits and decided to stay the enforcement of the deportation order while it considered the request. Moreover, the Board found that the information about the first applicant’s poor mental health was of a certain importance, for which reason it assigned P.N., physician and specialist in psychiatry, to examine the first applicant in order to evaluate her state of health and whether an enforcement of the deportation order would be possible from a medical point of view.
After having consulted the first applicant’s medical records and examined her, Dr P.N. concluded that her mental health problems did not amount to a serious mental disorder and that there was no impediment to the enforcement of the deportation order from a medical point of view. However, he considered that experienced and competent personnel should be present during the deportation as the first applicant’s anxiety could escalate and manifest itself through self-destructive behaviour.
On 12 August 2009 the Migration Board, having regard to Dr P.N.’s evaluation, decided that there were no impediments to the enforcement of the deportation order and that the applicants could not be granted leave to remain in Sweden. It also lifted the stay on the deportation order.
The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions.
The Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).
Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).
Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9).
The United States Department of State Country Reports on Human Rights Practices concerning Burundi of 2010, dated 8 April 2011, sets out, inter alia, the following:
“Burundi is a constitutional republic with an elected government and a population of 8.6 million. From May to September, the country held elections for all public offices, including the first direct presidential elections since 1993. Following the May 25 Communal Council elections, which the international community characterized as generally free and fair, a coalition of 12 opposition parties alleged massive fraud and called for the annulment of the results and new elections. When the parties’ demands were not met, they withdrew their candidates from the subsequent presidential, legislative, and "colline" elections. President Pierre Nkurunziza, of the ruling National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD) party, ran unopposed in the June presidential election and was reelected to a second term.
International observers characterized the elections as generally free and fair, although there were reports of political violence leading up to and throughout the five-month election season. Security forces reported to civilian authorities. There were instances in which elements of the security forces acted independently of civilian control.
Women
The law prohibits rape, which is punishable by up to 30 years’ imprisonment; however, the government did not enforce the law effectively, and rape and other sexual violence against women and girls were problems. The rape of minors, or rape committed by persons who infect their victim with an incurable sexually transmitted disease, is punishable by life imprisonment. Spousal rape is punishable by fines of 10,000 to 50,000 francs ($8 to $40) and eight days’ imprisonment.
Many women were reluctant to report rape for cultural reasons, fear of reprisal, and the unavailability of medical care. Men often abandoned their wives following acts of rape, and rape victims were ostracized. Police and magistrates regularly required that victims provide food for and pay the costs of incarceration of those they accused of rape. According to a March 2009 report by Médecins Sans Frontières de Belgique (MSF-Belgium), many victims who sought judicial redress faced an unresponsive judicial system, and courts often refused to act on cases without witnesses. Some victims were reportedly required to pay 15,000 francs ($12.07), a large sum for most victims, to obtain a certified medical report. Other problems included judges who did not regard rape as a serious crime and a lack of medical facilities to gather medical evidence. According to women’s rights organizations, at times families or communities forced victims to withdraw their complaints and negotiate settlements with the perpetrator or his family outside of the formal judicial system. In other cases the victims were forced by their families and local arbiters to marry their attackers. According to the local NGO Centre Seruka, 60 percent of persons responsible for rape were arrested, and of these 30 percent were prosecuted. As of September the APRODH recorded 61 rapists arrested. Of the limited number of cases that were investigated, successful prosecutions of rapists were rare.
During the year the Ministry of Solidarity began compiling rape statistics through decentralized family development centers (CDF) throughout the country. According to CDF reports, there were 1,556 reported cases of gender-based violence as of July. The ADDF received reports of 3,701 cases of rape and domestic violence as of September, most of which occurred in Bujumbura and its outlying areas. Centre Seruka, equipped in part by MSF-Belgium and funded by the UN, received 742 victims during the year at its center for rape victims in Bujumbura. Of the victims they assisted, 60 percent were raped by persons they knew, including members of their families, cooks, and neighbors. Local and international NGOs, the government, and the UN claimed the number of rape victims was likely much higher.
Civil society and religious communities worked to overcome the cultural stigma of rape to help victims reintegrate into families that had rejected them. Ligue Iteka, the APRODH, the ADDF, and BINUB continued to encourage rape victims to press charges and to seek medical care, and international NGOs provided free medical care, mostly in urban areas. The government also raised awareness of the problem through seminars and local initiatives describing the kinds of medical care available...”
According to the fifth Report of the Secretary General on the United Nations Integrated Office in Burundi (document S/2010/608), dated 30 November 2010, the security situation, although relatively stable during the period under Review (December 2009 to November 2010), remains a concern. The incidence of criminal activities remained high, with acts of armed robbery, killings and sexual violence. Those acts are largely attributed to the widespread circulation of weapons, land disputes and the socio-economic situation in the country. During the electoral period, there was a massive deployment of security forces throughout the country.
Amnesty International reported in its Report 2009 – Burundi that there continued to be a high incidence of rape and other sexual violence against women and girls during 2008. For example, a centre run by Médecins sans Frontières in Bujumbura received an average of 131 rape victims a month in 2008.


ITEMID: 001-60853
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF CULJAK AND OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The first and the second applicants were born in 1958 and 1959, respectively, and live in Požega. The third applicant, “Mesoprodukt”, is a meat production company.
8. In 1991 the first and second applicants founded the company “Mesoprodukt”, a personal private company in Požega. The company is entirely owned by the first and second applicants and they are liable for the company's obligations with all their assets. The present case concerns several proceedings in respect of “Mesoprodukt”.
9. By virtue of the Požega County Veterinary Inspection (veterinarski inspektor Ureda za gospodarstvo Županije požeško-slavonske) decision of 26 May 1994, the applicant company was prohibited from slaughtering animals and producing meat for human consumption.
10. Upon the applicant company's appeal the Appeal Commission of the Ministry of Agriculture and Forestry (Uprava za veterinarstvo poljoprivrede i šumarstva) quashed the first instance decision on 14 June 1994.
11. On 14 November 1994 the applicant company filed a suit with the Požega Municipal Court (Općinski sud u Požegi) seeking payment of damages from the Požega and Slavonija County (Županija Požeško-Slavonska), due to the fact that it had been prohibited from producing meat from 26 May 1994 until 14 June 1994.
12. Prior to 5 November 1997 the Požega Municipal Court ordered that a financial expertise be carried out and invited the applicant company to pay an advance for expenses related to the expert opinion. The applicant company paid the advance in part.
13. On 3 April 1998 the court invited the applicant company to pay the remainder of the advance.
14. On 4 May 1999 the appointed expert informed the court that the applicant company had not paid the remainder of the advance for the expenses.
15. At the hearing on 7 May 1999 the court invited the Požega Tax Revenue Service to submit documentation about the applicant company's income in 1993 and 1994 in order to carry out a complete financial expertise. In January 2000 the requested documents were submitted. On 10 April 2000 the court sent this documentation to the appointed expert. The applicant company was invited to pay an advance for the expenses related to a new expertise.
16. The next hearing scheduled for 23 January 2001 was adjourned at the request of the applicants' counsel.
17. At the hearing on 1 March 2001 the court stayed the proceedings because the first and second applicants, although they received the notice of the hearing date, did not appear.
18. On 12 June 2001 the applicants' counsel asked the court to resume the proceedings. The court then ordered that additional expertise be carried out and invited the defendant to pay an advance for the expenses of the expertise.
19. On 5 December 2001 the defendant informed the court that it did not wish to pay the expenses.
20. On 4 January 2002 the court requested the Slavonski Brod Commercial Court (Trgovački sud u Slavonskom Brodu) to provide documentation concerning the applicant company's registration.
On 17 January the requested documentation was submitted.
21. At the hearing on 18 February 2002 one witness was heard and the defendant filed further written submissions. The applicants' counsel was asked to file a written reply and to specify their claim within fifteen days.
22. It appears that the proceedings are pending before the court of first instance.
23. On 18 March 1994 the police seized a vehicle owned by the first applicant's wife. The vehicle had been used for transportation of goods related to “Mesoprodukt”. On 21 April 1994 the vehicle was returned.
24. On 14 November 1994 the applicant company filed a suit with the Požega Municipal Court against the Ministry of Interior (Ministarstvo unutarnjih poslova) and the Ministry of Finance (Ministarstvo financija), seeking payment of damages for the profits lost due to its inability to transport goods with the vehicle.
25. On 14 August 1996 the Požega Municipal Court pronounced judgment granting the applicant company's claim. Both parties appealed against the judgment.
26. On 19 November 1997 the Požega County Court (Županijski sud u Požegi) quashed the first instance judgment and remitted the case for re-trial.
27. The hearing scheduled for 16 June 1998 was adjourned due to the illness of the expert who was to be heard.
28. The hearing scheduled for 4 June 1999 was adjourned due to the expert's absence.
29. On 29 October 1999 the Act on Changes of the Civil Obligations Act was introduced providing that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed pending the enactment of new legislation on the subject.
30. On 22 January 2002 the proceedings were stayed pursuant to the above Act.
31. The applicants' counsel appealed against that decision. The appeal was rejected on 27 March 2002 by the Požega County Court.
32. The proceedings are accordingly pending before the first instance court.
33. On 9 December 1993 the the Požega County Finance Police Office (Postaja financijske policije za Požeško-slavonsku županiju) ordered the applicant company to pay a transfer and sale of goods tax (porez na promet proizvoda i usluga) in the amount of 179,837.52 Croatian Kunas (HRK) and HRK 363,600.87 in interest. As the applicant company refused to pay those sums, its bank account was blocked.
34. The applicant company's ensuing appeals were successful and on 13 January 1997 the Ministry re-assessed the amount of tax to be paid to HRK 64,955.00 and HRK 64,381,52 in interest. The applicant company paid those sums immediately after receiving this decision.
35. Subsequently, on 19 November 1997 the applicant company filed a suit with the Požega Municipal Court seeking payment of damages from the Ministry of Finance due to the fact that the authorities' miscalculation of the tax had caused an unwarranted blocking of the bank account of the company.
36. On 9 December 1997 the defendant filed its submissions objecting to the applicant company's claim.
37. The preliminary hearing scheduled for 10 December 1997 was adjourned due to the defendant's absence.
38. On 15 October 1998 the defendant submitted a detailed reply denying the applicant company's claim.
39. The next hearing was held on 29 October 1998.
40. On 15 October 1999 the court invited the applicant company to pay the court fees. The applicant company failed to do so.
41. On 2 March 2000 the court informed the Tax Revenue Service that the applicant company had not paid the court fees.
42. At the hearing on 17 January 2001 the defendant asked the court to stay the proceedings until the applicant company had paid the court fees. The court invited the Tax Revenue Service to inform it whether the applicant company had paid the fees. It also invited the Požega Commercial Court (Trgovački sud u Požegi) to submit documentation concerning the assets of the applicant company.
43. On 6 March 2001 the Požega Commercial Court submitted the requested documentation.
44. It appears that the proceedings are presently pending before the court of first instance.
45. In respect of the above-mentioned three sets of civil proceedings the applicant company lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the excessive length of the three above sets of proceedings and requesting the speeding up of those proceedings.
46. By decision of 4 May 2000 the Constitutional Court rejected the applicant company's complaint finding that the proceedings did not exceed the reasonable time requirement.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23532
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TOMIC v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Milovan Tomic, is a Croatian national, who was born in 1962 and, at the time of lodging the application, was detained in Bedford police station. He was represented before the Court by Ms Savic, a solicitor practising in London.
The applicant is an ethnic Serb from Croatia, brought up in Vinkovci in the region of Eastern Slavonia which was at the time in the Federal Republic of Yugoslavia.
In 1990, the applicant was beaten up by Croatian police because of his Serb origin and was unable to walk for two weeks.
In April 1991, the applicant joined the Territorial Defence Unit set up by Serbs when it became clear that war was imminent.
On 25 June 1991, Croatia declared independence. Hostilities followed with the Yugoslav Republic and the Serb minority living in Croatia. In October 1991, the Serb Autonomous Regions, which included Eastern Slavonia, were set up in Croatia. After the conflicts escalated, the applicant joined a special forces unit called “the Scorpions” where he became commander of a unit with the rank of lieutenant. He participated in the heaviest battles of the war in Croatia and Bosnia.
In January 1992, the applicant married. He claims that his wife was killed by Croats on 25 August 1992.
In May 1995, the Croatian Army entered the region of Western Slavonia where the applicant was based. In November 1995, Croatia and the Federal Republic of Yugoslavia signed the Erdut-Zagreb Agreement which sanctioned the setting up of an interim United Nations Transitional Administrative Area in Eastern Slavonia before the transfer of the region to Croatia on 15 January 1998.
On 12 December 1997, the applicant moved to Serbia as he feared imprisonment by the Croatian authorities because of his involvement with the Scorpions.
In 1999, the applicant claims that his brother-in-law, Milovan Jeremic, died following a beating by Croat. The applicant’s sister went to live in Ireland.
On 29 March 2001, the applicant left Serbia as he had no legal status or rights there. He claimed asylum in Ireland but this was refused.
On 14 December 2001, the applicant entered the United Kingdom illegally and applied for asylum on 14 January 2002.
By letter dated 25 February 2002, the Secretary of State rejected his claim on the basis that there was no longer any real risk in the applicant returning to Croatia. He referred to the amnesty introduced in March 1998 for those who had participated in the 1991-1995 conflict and the recognition of the interests of ethnic Serbs introduced in changes to the Croatian Constitution.
On 19 August 2002, the Adjudicator heard, and granted, the applicant’s appeal. She accepted that the applicant had never been involved in war crimes but that he was reasonably likely to be arrested on such charges if returned to Croatia, particularly due to his position as commander of one of the special units. There was a reasonable likelihood that he would face lengthy incarceration without receiving a fair trial on political motives. She also found that the level of discrimination that he would face as an ethnic Serb on a general level would cumulatively amount to persecution, which was either state-sponsored or in respect of which there was an insufficiency of protection by the State. The Secretary of State appealed to the Immigration Appeal Tribunal.
While the appeal was pending, the Immigration Appeal Tribunal issued its decision in a case concerning claims of ethnic Serbs who claimed that the general situation in Croatia placed them at risk of persecution and severe discrimination. In its decision, SK and others [UKIAT] 0563, issued on 17 December 2002, it concluded that “unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either Convention”.
On 20 December 2002, the Immigration Appeal Tribunal heard the applicant’s appeal. In its decision of 26 February 2003, it relied on its findings in SK about the general situation in Croatia and found that the applicant’s rank as a special unit officer, the death of his wife in 1992 and his brother-in-law some time later did not amount to special circumstances.
The Court of Appeal refused leave to appeal to the applicants in the SK case on 20 May 2003.
In its decision issued on 17 December 2002 in Secretary for the Home Department and S.K., the Immigration Appeal Tribunal quashed the decision of the Adjudicator who had upheld the appeals against the refusal of asylum to ethnic Serbs on the ground that they would face persecution in Croatia. It also found that the applicants were not at risk of treatment contrary to Articles 3, 8 or 14. Materials before it included reports from the Home Office, UNHCR, OSCE, Human Rights Watch, Amnesty, the U.S. State Department, ECRI, the European Union and statements of three experts (Dr Milivojevic, Dr Gow and Mr Glenny).
“... we turn to our assessment of the situation. The claimants recognise that unfair war crimes trials are of less significance in these cases (with the exception of MM) and that there is no sufficient evidence to suggest that in general there is a real risk that returning Serbs will face unfair war crimes trials. There must be some special factor to bring that concern into play. ... The essential complaints common to all are: -
1. Discriminatory loss of homes and livelihood.
2. Discriminatory denial of social and economic rights in the areas to which return is envisaged. No special efforts are being made to redress the wrongs suffered and help return to society.
3. Discriminatory denial of judicial assistance in reclaiming homes occupied by Croats.
4. Loss of stability and security because of the prospect of a marginalised and ostracised existence in a largely ethnically cleansed country. Only a small fraction of Serbs who used to live in Croatia now remain and the majority are the elderly who have returned to die in their homeland. ...”
It proceeded to examine the situation in Croatia, noting that there had been considerable improvements since the end of the Tudjman regime in 1999, with the Government making real efforts to overcome the legacy of hatred and taking positive steps to remove the obstacles to the return of refugees and discrimination against ethnic minorities. It noted that concerns had remained that the good intentions of the central government were being frustrated by local officials and by incompetence of, or unwillingness to apply the laws in favour of Serbs by, the judiciary. By May 2002, in the OSCE status report, it was found that property repossession remained at the core of the return process. An action plan had been drawn up by the Government to return some 19,000 properties by the end of 2002 and steps were being taken to address the tenancy problems. The tribunal reviewed other sources and noted that real difficulties and discrimination undoubtedly faced returning Serbs but that the Government was undoubtedly taking steps to improve the situation, for example undertaking to assist returnees in re-integration by providing basic assistance depending on monthly income for a six month period. It noted that the UNHCR directly supported the Government’s return programme and was satisfied that it would not be encouraging returns if persuaded that there would be persecution, or treatment, contrary to Article 3 of the Convention.
It noted as regarded war crimes prosecutions:
“War crimes prosecutions we can deal with relatively briefly having regard to the concession that unless there is a particular reason to believe an individual will be prosecuted or (as in the case of MM) has been prosecuted, they cannot be relied on as a barrier to return. ... The OSCE and UNHCR closely monitor prosecutions and in particular if a returnee is arrested, the UNHCR will ‘very closely and thoroughly monitor’ the situation. It notes that ‘we found the trials have been very fair and correct in their procedure’. The numbers do not suggest there are widespread prosecutions let alone an implementation of the lists to which we have been referred... In November 2001, we find OSCE noting:–
‘... a positive trend in ... decisions by County Prosecutors and judges to reject war crimes and genocide charges against groups of Serbs due to the lack of evidence of individual crimes.’
Despite this, there remain some problems where trials in absentia have been held. MM is an example, he having been sentenced to 4 years imprisonment on the basis of charges which ... cannot properly be said to amount to conduct which can be reasonably regarded as constituting a war crime. He manned a barricade and was... offensive and threatening in a racist manner to Croats. An accelerated procedure has been put into effect to ensure a reconsideration and if necessary retrial of anyone convicted in absentia. But there may be a remand in custody of usually no more than one or two months while the matter is reconsidered. If it is clear that the case is too weak ..., release may be effected after a couple of days ... we find it impossible to say that there would be persecution or a breach of human rights if the question whether there should be a re-trial is investigated properly even if there may be a relatively short period of remand in custody while that is being done.
The tribunal concluded:
“... the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. ... Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by proper control of immigration.
... unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either Convention.”
In Resolution 1223 (2000) on the Honouring of obligations and commitments by Croatia, the Parliamentary Assembly on 26 September 2000 adopted its recommendation closing the monitoring procedure concerning Croatia. It welcomed the significant progress that Croatia had made towards its commitments and obligations as a member state since its accession to the Council of Europe on 6 November 1996 and in particular, since the parliamentary and presidential elections held at the beginning of 2000.
A post-monitoring dialogue with the Croatian authorities has continued through the Assembly’s Monitoring Committee.
Arrests of returnees on war crimes: 1999 (9); 2000 (16); 2001 (28); 2002 (16).
Suspects released: 1999 (7); 2000 (11); 2001 (26); 2002 (9).
Conviction on war crimes: 1999 (1); 2000 (3); 2001 (0); 2002 (1).
“The Government generally respected the human rights of its citizens; however, although there were some improvements, serious problems remained. There were instances of arbitrary arrest and lengthy pre-trial detention. The Government continued to arrest and charge persons for war crimes committed during the 1991-1995 conflicts in Bosnia and Croatia. Domestic courts continued to adjudicate war crimes cases, taking steps to depoliticize cases against ethnic Serbs and opening or reopening investigations of members of Croatian military forces. However, ethnic Serbs remained incarcerated after being convicted in non-transparent politicized trials in past years. Reforms in the courts and prosecutors’ offices resulted in some improvements in the judiciary; however, the courts convicted persons in mass trials and in absentia, particularly in Eastern Slavonia. The court continued to be subject to some political influence and suffered from bureaucratic inefficiency, insufficient funding and a severe backlog of cases. At times the Government infringed on privacy rights; restitution of property to refugees (mostly ethnic Serb) returning to the country remained slow and problematic.
... Ethnic minorities, particularly Serbs and Roma, faced serious discrimination, including occasional violence. While some progress was made, ethnic tensions in the war-affected areas remained high, and abuses, including ethnically motivated harassment and assaults continued to occur...
a. Arbitrary or unlawful deprivation of life
There were no reports of arbitrary or unlawful deprivation of life by the Government or its agents. ...
Domestic courts continued to adjudicate cases arising from the 1991-1995 conflicts in Croatia and Bosnia. Courts opened and reopened several war crimes cases involving Croatian forces, but despite their increased number, questions remained about the criminal justice system’s ability to conduct fair and transparent trials in these complex and emotionally charged cases. Observers blamed inadequate training, shortcomings in the legal code, chronic witness intimidation, and an often hostile local public as hampering the war crimes process. ...
During the year, the Government took some steps to depoliticize cases against ethnic Serbs. The OSCE reported that at the year’s end it was monitoring 59 ongoing war crimes cases against ethnic Serbs. In October Zadar County Court sentenced Zorana Banic, an ethnic Serb accused of war crimes against civilians in Skabrnja in 1991, to 13 years in prison. In a previous in absentia trial she had been given a maximum 20 year sentence. The indictment included participation in the murder of 34 civilians. International monitors considered it a fair trial.
Courts continued the practice of convicting persons in mass trials. For example, in March 2001 mass trials in the ‘Tompojevci group’ case resulted in absentia convictions on war crimes charges for 15 defendants, and in June the Supreme Court confirmed 9 of these convictions. ...
d. Arbitrary Arrest, Detention or Exile
The Constitution prohibits arbitrary arrest and detention; however, the Government did not always respect this right in practice. ...
The Government granted amnesty under the 1996 Amnesty Law (which amnestied acts of rebellion by ethnic Serbs) to several individuals during the law, particularly returning ethnic Serb refugees. In July the State Prosecutor directed local prosecutors to review old war crimes cases to determine whether sufficient evidence existed to proceed with the prosecution. Arrest of ethnic Serbs for war crimes continued but decreased throughout the year. During the years, 34 Serbs and 3 Croats were arrested on war crimes charges and 21 Serbs and 13 Croats were released. In some cases of arrest on war crimes charges, the subject was released a few days after charges were dropped; however, in other cases, the persons were detained for long periods. The inability of judges to issue written verdicts was the leading cause of detention beyond the legal 6 month limit. ... Over the last few years, several ethnic Serb defendants convicted in absentia or at nontransparent trials continued to be held in detention for extended periods while their appeals progressed slowly through the overburdened judicial system. ...
Observers reported a decline in the practice of police summoning ethnic Serbs to police stations for ‘voluntary informative talks’ which amounted to brief, warrantless detentions intended to harass Serb citizens.
e. Denial of Fair Public Trial
Although the Constitution provided for the right to a fair trial and a variety of due process rights in the courts, at times citizens were denied these rights. Excessive delays, particularly in civil trials, remained a problem. Courts tried and convicted persons in absentia for war crimes. Courts convicted persons in mass trials and in trials with weak supporting evidence, particularly in Eastern Slavonia. In March 2001, mass trials in the ‘Tompojevci group’ case resulted in the in absentia convictions of nine ethnic Serbs... In May the Osijek County Court convicted and sentenced in absentia 12 Serbs in the ‘Branjina’ case. In June and July the Vukovar County Court continued in absentia trials against 6 Serbs in the ‘Vukovar Group I’ and against 11 Serbs in a retrial in the ‘Bapska’ case.
Activities that should have qualified for amnesty under the 1996 Law ... were classified mistakenly and prosecuted as common crimes or war crimes, although this practice declined and was under review by the Public Prosecutor. For those who had previously exhausted their appeal procedures, there was no mechanism to review their cases.
Nevertheless, the courts continued to adjudicate war crimes cases arising from the 1991-1995 conflicts in Bosnia and Croatia, initiated investigations into several allegations involving Croatian forces and took steps to depoliticize cases against ethnic Serbs. For example, the chief State Prosecutor initiated a case-by-case review of war crimes cases and sought to limit sharply the use of in absentia proceedings. County prosecutors were under instructions not to initiate criminal proceedings or in absentia proceedings without consultation with the State Prosecutor. ...
At year’s end, approximately 21 individuals remained incarcerated on war crimes or related charges based on politicized or nontransparent trials held under the previous regime. ...
Section 5. Discrimination Based on Race, Sex, Disability, Language or Social Status
...
National /Racial/Ethnic Minorities
Ethnic minorities enjoy the same constitutional protections as other self-identified ethnic and religious groups; however, in practice a pattern of open and sometimes severe discrimination continued against ethnic Serbs in several areas, including in the administration of justice, employment, housing and freedom of movement. Ethnic Serbs in war-affected regions continued to be subject to harassment, intimidation, and occasional violence. In December after extensive discussion with minority groups and political parties, Parliament passed a Constitutional Law on National Minorities with broad political support. The OSCE generally assessed the new law positively. The law assures minority representation in local government bodies, creates minority councils from the local to national level to advise elected officials on minority rights, promotes the use of minority languages and symbols, and provides for the election of up to eight minority representatives in the next Parliament. ...
Societal intimidation and violence against Serbs continued in war-affected areas... Weapons left over from the war, including firearms and explosives, were readily available and used in incidents of harassment during the year. Incidents largely occurred in the areas of return in central Dalmatia. In February Serb returnee Jovan Bosta was beaten to death in Benkovac near Knin; contradictory police reports were published and no arrests were made. Also in February two grenades were thrown into the yard of a house owned by a Serb family in the Dnris area. Police responded appropriately and an investigation was ongoing. In April a returnee’s house in the Benkovac area and a local school were burned. In Glina a Serb returnee’s shop was attacked after the screening of a war-related film in which the perpetrators allegedly recognised the owner as a former soldier. Returnee Serbs in the village of Donji Karin reported continuous destruction of crops and vineyards by a Bosnian Croat settler; despite repeated reports to the local police, no action was taken against the suspect. Ethnic Serbs in the area received verbal death threats and one family was pelted repeatedly by stones while working their fields...
An ongoing impediment to the return and reintegration of ethnic Serb refugees is the failure of the Government to recognize or ‘convalidate’ their legal and administrative documents from the period of the 1991-1995 conflict. Implementation of the 1997 convalidation law to allow the recognition of documents issued by the rebel Serb para-state was undermined by Ministry of Labour and Social Welfare instructions that seriously limited eligibility. While the law itself did not include a deadline for filing applications, a decree issued by the previous regime established an April 1999 deadline. Since more than half of the 71,000 Serbs who have returned to Croatia returned after April 1999, the filing deadline effectively excludes most of those who otherwise would be beneficiaries. Even persons who filed before this deadline experienced arbitrary delays and obstructions. Without the recognition conferred by law, citizens (almost exclusively ethnic Serbs) remained unable to resolve a wide range of problems including pensions, disability insurance, and ability to establish work experience. Most requests came from elderly persons and related to pension and employment histories from occupied territories during the conflict. ...”