Poland - Voivodeship Administrative Court of Warsaw, IV SA/Wa 2086/18, 5 November 2019
| Country of Decision: | Poland |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Voivodeship Administrative Court of Warsaw |
| Date of decision: | 05-11-2019 |
| Citation: | IV SA/Wa 2086/18 - Wyrok WSA w Warszawie |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Facts:
Mr Azamat Bayduev is a citizen of Russia, of Chechen origin, who was granted international protection in Poland in 2007. In 2018, due to national security reasons his protection was withdrawn and he was expelled from Poland as a result of the execution of the decision of the Minister of the Interior and Administration to oblige him to return, issued on the basis of the provisions introduced by the Act of 2016 on Anti-Terrorist Activities. Pursuant to these provisions, the Minister issues a decision obliging to return a foreigner suspected of conducting terrorist or espionage activity. The decision is immediately enforceable.
The decision to oblige Mr Azamat Bayduev to return was issued by the Minister on the basis of classified Internal Security Agency documents to which neither the foreigner nor his legal representative had access during the proceedings. Due to national security reasons the decision did not include the justification either. As a result, the reasons for expulsion from Poland were not disclosed to Mr Bayduev at any stage of the proceedings. Moreover, the Minister failed to examine whether the foreigner's fear of returning to Russia which we claimed during the proceedings was justified and whether he should therefore be granted one of the forms of protection against expulsion (humanitarian stay or tolerated stay permit).
Following Mr Bayduev's expulsion in August 2018, Amnesty International reported that immediately after his return to Russia, he was apprehended by Russian security forces immediately upon return and was transported to an unknown place, where he was kept under detention.
Decision & reasoning:
Before the Voivodeship Administrative Court of Warsaw, the applicant argued that he had been deprived of the legal safeguards in the proceedings, including the right of defense and effective remedy. Moreover, he also argued that the Minister failed to examine if Mr Bayduev faced the risk of tortures upon return, which was a clear violation of Article 3 ECHR.
On 5 November 2019, the Court annulled the decision of the Minister, underlining that, in accordance with national law, it was the Minister's obligation to examine the risk of torture in case of expulsion of the foreigner. The same obligation also required a consideration of the provisions granting protection against expulsion. At the same time, the court indicated that it had not found procedural violations due to the foreigner's lack of access to the documents constituting the basis for his expulsion.
Subsequent proceedings:
The judgement is not final.
Observations/comments:
The case was supported by the Helsinki Foundation for Human Rights (HFHR). Many thanks to Marta Górczyńska, Lawyer at HFHR, for bringin this case to our attention and completing the summary.