ECtHR - Poklikayew v. Poland, Application No. 1103/16, 22/06/2023

Facts:

The applicant was born in 1980 and currently lives in Belarus. The applicant moved to Poland in 2006. On 3 March 2006 he was granted a resident permit, in view of his Polish origins. Subsequently, the applicant settled in Poland, found a job and bought an apartment.

On 23 January 2012 the head of the Internal Security Agency issued a request to have the applicant expelled on state security grounds. It was noted that since 2000 the applicant had been collaborating with the Belarusian secret services. On 2 March 2012 the Agency confirmed its request to have the applicant expelled from Poland. Additionally, the Governor prohibited the applicant from entering and remaining in the Schengen Area for a period of five years. An immediate enforcement clause was attached to this decision.

On 20 March 2012 the applicant was expelled from Poland.  The applicant appealed the decision before the Warsaw Regional Administrative Court which upheld the second-instance decision to expel the applicant stating that refusal of access to documents was based on the fact that the applicant’s representative had not obtained a certificate of clearance, therefore he could not have been treated as a person who could give a guarantee of secrecy. Ultimately, on 28 July 2015 the Supreme Administrative Court dismissed the cassation appeal by the applicant, observing that the analysis of the secret material which had been made by the authorised bodies was binding and sufficient.

Decision & reasoning:

The Court held that Article 1, §1, of Protocol No. 7 required that the foreigner concerned be informed of the factual elements which had led the domestic authorities to consider that he represented a threat to national security. Moreover, he  should be given access to the content of the documents and the information in the case file on which those authorities had relied on when deciding on his expulsion

The Court further stated that any limitations of the rights in question should not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision. Even in the event of limitations, foreigners should be offered an effective opportunity to submit reasons against their expulsion and should be protected against any arbitrariness.

The Court first ascertained whether the limitations of the immigrant’s procedural rights had been found to be duly justified by the competent independent authority in the light of the particular circumstances of the case. The Court then examined whether the difficulties resulting from those limitations were sufficiently compensated for by counterbalancing factors. Thus, only limitations which, in the circumstances of each case, were duly justified and sufficiently counterbalanced would be permissible in the context of Article 1 of Protocol No. 7

The Court found that in the present case the applicant was subjected to significant limitations in the exercise of his right to be informed of the factual elements underlying the decision to expel him and of his right to have access to the content of the documents and the information relied on by the authority which made that decision.  In conclusion, the Court finds that the limitations imposed on the applicant’s enjoyment of his rights under Article 1 of Protocol No. 7 were not counterbalanced in the domestic proceedings such as to preserve the very essence of those rights. Accordingly, there has been a violation of Article 1 of Protocol No. 7 to the Convention.

Outcome:

Violation of Article 1 of Protocol No. 7 to the Convention of Human Rights.

Observations/comments:

This case was written by Oleksandr Khachaturian, student at the Human Rights and Migration Law Clinic of the University of Gent.

Other sources:

European Convention on Human Rights, Protocol No. 7, Article 1