Heard at FIELD HOUSE
On 10th July 2002

IMMIGRATION APPEAL TRIBUNAL

Date Determination  notified

2ND SEPTEMBER 2002

Before:
Mr. D. J. Parkes (Chairman)
Mrs. E. Hurst J.P.
Mr. A. Smith

	BETWEEN:

MRS. LINA ROSTAS

Appellant 

- and -

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Romania.   She appeals against the determination of an Adjudicator, Mr. C. J. Deavin, promulgated on 7th February 2002 dismissing her appeal against the removal directions issued by the Secretary of State on the 3rd January 2001. 

2.	Mr. R. Ghaffar of Counsel instructed by Messrs. Shahid Rahman appeared for the Appellant.   The Secretary of State was represented by Senior Presenting Officer Ms. A. Green. 

3.	The Appellant is a Romanian Gypsy who lived among the gyspy community in Huedin in Romania until 1998.    On 20th August 1998 together with her husband and two children she fled Romania and came to the United Kingdom where her husband applied for asylum.    His application was refused in February 1999 and a subsequent appeal was dismissed whereupon the Appellant claimed asylum with her husband and their children as dependents.   

4.	The appeal was originally certified and the Adjudicator agreed with the certificate but upon Judicial Review it was by agreement quashed and the determination repromulgated thus enabling this appeal to the Tribunal.

5.	It is apparent from the report of the Country Information and Policy Unit of the Home Office that in Romania as in many Eastern European countries there is discrimination against Roma by members of the population generally and often by those in official office.    There is a strong population of Roma in Romania.    The most recent census, in 1992, put the number of 409,000 but community associations estimate the true figure to be more than 2 million possibly 2.5 million, more than 10% of the total population.  

6.	In October 2000 the U.N.H.C.R. stated that whilst it is beyond dispute that Roma in Central and Eastern European countries are frequent victims of discrimination and on occasion victims of violence conditions do not warrant the recognition of such asylum claims on a prima facie basis.    At paragraph 5.91 of the most recent C.I.P.U. report there is reference to the United Nations Economic and Social Council in February 2000 report on racial discrimination in Romania which acknowledged that some forms of racial discrimination still existed.     It pointed out, nevertheless, that this should not detract from the numerous measures the government has already taken to deal with the problem of discrimination against the Roma at its source, in other words, their socio-economic marginalization.    The European Commission in its annual report on progress towards accession of November 2001 concluded that the government has taken several major initiatives to address the problems faced by the Roma minority. 

7.	The Appellant claims that she and her husband were harassed by the police in Romania and that each of them have been ill-treated.    She claims that to have been due to their activities in a Romany party called the Ace of Clubs.   It was the Respondent’s contention before the Adjudicator that the troubles experienced by the Appellant had nothing to do with any such political activity.    At interview that had not even been mentioned.    The problem, suggested the Respondent, was really about the Appellant’s husband selling goods without a licence as a result of which a warrant had been issued for his arrest and this had led to problems with the police.     It is right to say that the Appellant in her written statement says that her husband was harassed by the police and his building materials were taken away from him and he was arrested and beaten  up.   

8.	In her statement the Appellant claims of two incidents which it is said amounted to persecution.     The first was on 7th March 1997 when she says that the police came to her home and detained her and she was beaten on her back and her shoulders and her head and was kept at the police station for three days.     Upon release she went to the hospital in Huedin, she says, where she was kept in for two days and treated and given medicaments for her injuries.    Following her return home she was frequently visited by the police who were looking for her husband. 

9.	The second incident was some 15 months later on the 18th June 1998 when the police again came to the home looking for the Appellant’s husband and when she was unable to tell them where he was they beat her up, she says, in front of the children and when that did not cause her to give the information which they thought that she had they took her to the police station and detained her for a further seven days.    She had been beaten up whilst in detention she says and when released on 25th June 1998 she went to hospital where she remained for seven days to be treated for her injuries.    

10.	It was following that release from hospital that the couple sold their house in August 1998, she contacted her husband who had been in hiding and they arranged to leave the country. 

11.	There was documentary evidence before the Adjudicator that the Appellant was treated in hospital at Huedin from 25th June 1998 to 2nd July of that year for cranial polytraumatism and thoracic traumatism.     She was discharged as improved.     The injuries had been caused, says the hospital report by repeated blows with a hard object.     

12.	There is also evidence of a summons dated 24th June 1998 requiring the Appellant to attend the Prosecutors Office in Huedin concerning a case of State Order disturbance and violence against the police.    

13.	The Adjudicator considered the totality of the evidence including what the Appellant claimed orally before him and what she had said at interview and he came to a view upon the facts of the 1998 incident that the police had come to the Appellant’s home looking for her husband but that there was some sort of fracas which resulted in a truncheon being used upon her and in her being reported for an assault on the police.     He did not accept that she had been arrested and detained for seven days but he accepted the medical evidence as to the injuries which she had suffered. 

14.	It is not submitted to us that the Adjudicator was not entitled to come to the conclusion which he did about what had happened in June 1998.    First it is said, and correctly so, that there has been no consideration by the Adjudicator as to whether the incident of March 1997 happened.    Secondly it is said, and regardless of the incident in 1997, what happened in 1998 as found by the Adjudicator amounted to a serious assault by the police who were not non-State agents and which therefore should be regarded, when considering whether in Romania there is a sufficiency of protection, quite differently from the general principle set out in the case of Horvath.     

15.	Thinking no doubt of the summons, and what might be the outcome of any proceedings, Mr. Ghaffar, referred us to paragraph 4.66 of C.I.P.U. to the effect that overall prison conditions in Romania are often extremely poor and prisons remained severely overcrowded in 2001.     The report goes on, however, to refer to a law of May 1999 providing for alternative sentences for minor offences comprising community service instead of detention which has helped to reduce the number of people detained.   

16.	Ms. Green referred us to those paragraphs of C.I.P.U. relating to the process of the Courts.     Although the Judiciary suffers from systemic corruption defendants are presumed innocent.    There is a guaranteed right to a defence attorney.   There is a right of appeal.     Confessions extracted as a result of police brutality may be withdrawn by the accused when brought before the Court.    The practice of extracting confessions through beating occurred only occasionally in 2001.     Detention of persons undergoing prosecution must not be the general rule, but only a measure justifiable in exceptional circumstances.    There is a right to compensation from the State for the harm suffered if criminal proceedings are subsequently dropped or the accused is acquitted.  

17.	We are not persuaded that the determination of the Adjudicator can be realistically attacked on the basis of the warrant either upon asylum or human rights grounds.    

18.	We turn now to the question of police brutality.   It is not sufficient for it to be shown that there is a general system of law and order which might be regarded as a sufficiency of protection against the behaviour of non-State agents.    The Appellant was injured by the police upon the finding of the Adjudicator  in 1998 and we will for the purpose of this appeal take it that she was attacked as she claims in 1997.      The Adjudicator referred to the likelihood of fracas arising as a result of the police endeavouring to investigate or intervene in relation to the unlawful activities of the Appellant’s husband.   Be that as it may if the actions of State agents amount to violence sufficient to be persecution it is the responsibility of the State to show that it is able to exercise control over those agents such as to provide for the citizens that measure of protection from such activities as is to be expected in a civilized and democratic country. 

19.	We are mindful of the fact that what has happened in the past may well be important evidence as to what is likely to happen in the future.     It is not, however, inevitably the case and it is the future which has to be considered.   The most recent incident is now 4 years ago.     Whereas it might take a long time for the attitudes of members of the population to be changed or educated and to develop a sufficiency of control that may not necessarily be the case in regard to those coming directly under the control of the State such as the police. 

20.	Ms. Green argues that the most recent information reveals that in Romania, a country anxious to become part of the European Union, it can be shown that the government no longer tolerate bad behaviour by agents of the State.    Information from the Innovation and Refugee Board of Ottawa, Canada reveals that on 5th March 2001 the Interior Ministry of Romania ordered an investigation into allegations of corruption published on an Internet site against several high ranking police officers.     12 Officers including 6 Colonels and a Constanta Police Chief who was reportedly accused of covering up a number of incidents in exchange for money were concerned.    Since the appointment of the new Left Wing Government in November 2000 several regional police chiefs have reportedly been dismissed following allegations of corruption.    Amnesty International reported that between January and June 2001 they received numerous reports of police ill-treatment.   However following concern expressed by Amnesty in 2000 about the alleged ill-treatment by Officers of the Buzau County Police Inspectorate Emergency Intervention sub-unit the County Police had repremanded and transferred to another unit the chief of the police unit concerned and several other officers in the squad were demoted and an additional officer was transferred to another unit.  

21.	We have considered those findings of the Adjudicator which upon the totality of the evidence he was entitled to make, we have taken into account the incident in 1997 and thus made good the deficiency in his determination.    We have considered the grounds of appeal and all the submissions made to us including the references to the background country information and we consider that the Adjudicator was entitled to find upon the totality of the evidence that applying the removal directions which are the subject of the appeal would not cause any breach on the part of the United Kingdom of either the Refugee or Human Rights Convention.    

22.	In those circumstances this appeal is dismissed. 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

D. J. Parkes 
Acting Vice-President