Poland - Court of Appeal in Wrocław, 29 December 2004, II Akz 508/04
Keywords:
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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)." |
Headnote:
This decision upheld the decision of the District Court in J. as regards the legal inadmissibility of extraditing a foreigner. The decision to accord refugee status was taken by a competent French authority and is binding within the territory of Poland, where the foreigner, who is sought by the Russian authorities, was detained. Poland recognises the decisions of other states to accord refugee status to foreigners and grants such foreigners the same degree and scope of legal protection as it would in the case of a foreigner granted protection by a competent Polish authority.
Facts:
The citizen of the Russian Federation was accorded refugee status in France. He was detained in Poland because the Russian Federation sought his prosecution and demanded his extradition on the basis of its agreement with Poland. The District Court (first instance) found that it was legally inadmissible to extradite the foreigner. However, the Public Prosecutor lodged an appeal, arguing that the fact that the foreigner had been granted residency rights in France did not prevent his extradition to his country of origin by a state other than the state which had granted him residency rights.
Decision & reasoning:
The decision of the Court as regards the legal admissibility of extraditing a wanted person must take into account Poland’s other commitments under domestic, international, and European law. Article 33(1) of the Geneva Convention regarding the institutions of deportation and expulsion also applies to the institution of extradition. It prohibits the expulsion of a foreigner who has refugee status unless he is deprived of that status.
It is justified to recognise as binding the decisions of authorities in foreign states to accord refugee status because those decisions are based on exactly the same criteria for according refugee status as laid down in the Geneva Convention. It is all the more justified in the case of the decisions of authorities in states which belong, as Poland does, to the European Union.
In connection with his recognised refugee status, the foreigner received a travel document from the French authorities which entitled him to enter all countries with the exception of the Russian Federation and which guaranteed his return to France for the period of the document’s validity. The foreigner was therefore entitled to take advantage of this privilege freely, without fear of sanction in the form of expulsion to Russia. Therefore, the extraditionof the foreigner to Russia in the event that he travelled to another Member State would demonstrate the ineffectiveness of EU law (effet utile).
Outcome:
The extraditionof the foreigner to his country of origin, which seeks his prosecution, was found to be legally inadmissible.
Observations/comments:
This ruling is very important for the notion of a uniform understanding of refugee status within the European Union, which is one of the aims of the Common European Asylum System. Unfortunately, in many cases, Polish courts have not regarded refugee status accorded in another state to be a legal obstacle to extraditing a foreigner pursuant to the provisions of an international agreement on legal assistance (in such cases, however, courts have usually refused extradition on other grounds, such as the risk of infringing rights and freedoms).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Poland - Court of Appeal in Wrocław, 21 January 2004, II Akz 407/08, OSA 2004/7/54 |
Other sources:
Article 31(1)(c) of the Treaty on European Union (in the wording prior to the Lisbon Treaty).