Poland - Judgement of the Supreme Court II KK 314/16 from 16 December 2016 quashing the judgement of the district court and referring the case back to the district court for reconsideration
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
The Supreme Court granted the cassation complaint lodged by the Polish Ombudsman in the case of a persecuted journalist forced to leave the country together with her son and accused of deception in order to obtain attestation of false information (in a form of a visa issued by a Consul). The Supreme Court agreed that there was a reasonable doubt with regard to the circumstances of the case and the guilt of the defendant. In the view of the Court, even if the defendant acted in a way which could be defined as deception in order to obtain attestation of false information, the circumstances of the case, the statements of the defendant and her clarifications should lead to a question whether the defendant could have acted in a state of necessity (i.e. the sole means by which she could have safeguarded an essential interest from a grave and imminent peril was to sacrifice another interest of lesser importance) while leaving the country.
Facts:
A woman was accused of deception in order to obtain attestation of false information (tourist visa) from a public official (Consul). The District Court found her guilty of the offence and punished her with a fine. The Ombudsman submitted a cassation complaint to the Supreme Court.
Decision & reasoning:
The Supreme Court agreed that there was a reasonable doubt with regard to the circumstances of the case and the guilt of the defendant. The court noticed that on 1 December 2011 the defendant clarified, that on the grounds of nationality and her profession (journalist) she was persecuted by the state security agents. She was subject to violence, including sexual violence and her son was threatened. She denied that she had lied to anybody or gave false information. In the course of the proceedings she admitted committing the offence in question, but with regard to the most important component of the offence she only stated that she had signed some applications, in order to leave the country, and she acted by an agent never herself going to the Polish Embassy.
The statements of the defendant are confirmed by the testimony of her son. The defendant decided to leave the country in a complicated personal situation. It has to be assessed by the court whether giving false information about the purpose of the visit to Poland amounted to deception. Even if the defendant acted in a way which could be defined as deception in order to obtain attestation of false information, the circumstances of the case, the statements of the defendant and her clarifications should lead to a question whether the defendant could have acted in a state of necessity while leaving the country.
Outcome:
The case is to be reconsidered by the District Court.
Cited National Legislation:
| Cited National Legislation |
| Poland - Article 272 of the Penal Code |