Poland - Supreme Administrative Court, 1 April 2015, no II OZ 218/15
| Country of Decision: | Poland |
| Court name: | Supreme Administrative Court |
| Date of decision: | 01-04-2015 |
| Citation: | II OZ 218/15 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland. Such an obligation is not formulated directly in the decision itself, but is based on the legal provisions in place. Therefore, the present decision does pose a direct threat of irreparable consequences for the applicant.
Granting temporary protection, by suspending the decision under which the applicant is obliged to leave the territory, allows for the standards of fair trial and the right to court (which covers the right to a fair trial as well as the right to have the case examined, including to be delivered by a ruling), thus going further than just the right to have the case examined.
Facts:
The applicant submitted an application for refugee status. The first instance authority (the Head of the Office for Foreigners) refused to grant him refugee status, subsidiary protection or tolerated stay permit (without issuing a return order). After an appeal, the second instance authority (the Polish Refugee Board) upheld the decision.
The applicant appealed to the Regional Administrative Court in Warsaw. The appeal included a request to suspend execution of the appealed decision, since its execution would lead to irreparable consequences for the applicant whereby he would not be able to participate in the court proceedings concerning his case.
The Regional Administrative Court in Warsaw refused to suspend the execution of the decision of the Polish Refugee Board. According to the court, the obligation to leave Poland after a final negative asylum decision is voluntary in nature, because it does not contain a return order. So the execution of such a decision, as in the present case, would not lead to irreparable consequences for the applicant.
In the cassation complaint to the Supreme Administrative Court, the applicant advanced that the possibility for the Border Guard to launch return proceedings, after the refusal of refugee status and subsidiary protection had been served, constitutes a risk of infringing the right to court, the right to reception conditions and the right to work legally in Poland during the court proceedings.
Decision & reasoning:
In light of the new Law on Foreigners, which entered into force on May 2014, the Court highlighted that the decision taken by the Polish Refugee Board refusing the applicant protection did not contain a return order. The Court noted that under the new law, the applicant is obliged to leave Poland within 30 days from the day the decision of the Polish Refugee Board is served. If the obligation to leave Poland is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. The Court, therefore, advanced that there is no doubt that issuing a decision by the Polish Refugee Board results in an obligation to leave the territory of Poland. This obligation is not formulated directly in the decision itself, but is based on the legal provisions in place.
The Supreme Administrative Court, therefore, held that the decision refusing the applicant protection does pose a direct threat of irreparable consequences for the applicant. Granting temporary protection by suspending the decision, by which the applicant is obliged to leave the territory, allows for the standards of fair trial and the right to court to be safeguarded (which covers the right to a fair trial as well as the right to have the case examined, including to be delivered by a ruling), and thus goes beyond the right to solely have the case examined..
Outcome:
The execution of the Polish Refugee Board’s decision was suspended.
Subsequent proceedings:
The applicant’s appeal on his refused application is not yet known.
Observations/comments:
Original ruling available at:
http://interwencjaprawna.pl/wp-content/uploads/II-OZ-218-15.pdf{C}{C}{C}{C}
Summary of the ruling in Polish available at: http://interwencjaprawna.pl/wygrana-sip-przed-naczelnym-sadem-administracyjnym/
The ruling raises the issue of an effective remedy and explains what the substance of this right is after the new Law on Foreigners entered into force. It is crucial to note that the Court ruled that the decision should have been suspended even if it did not concern return directly but could result in return before the case was to be heard.
Note that the Supreme Administrative Court has, in the past, advanced opposite reasoning concerning the suspensive effect of appeals. For a case summary please see here. The Court appears to have followed this reasoning in cases from May 2015, thus it is hard to know what exactly is the legal weight of this particular judgment.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Poland - Law of 30 August 2002 on proceedings before administrative courts |
| Poland - Law of 12 December 2013 on Foreigners |