Poland - Ruling of the Supreme Administrative Court from 29 June 2016 II OSK 2586/14 dismissing the complaint against a refusal of access to files in the case of a return of a third country national, 29 June 2016
| Country of Decision: | Poland |
| Court name: | Supreme Administrative Court |
| Date of decision: | 29-06-2016 |
| Citation: | II OSK2586/14 |
Keywords:
| 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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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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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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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:
Limiting the possibility to access classified information to the third country national does not automatically mean that their right to an effective remedy with regard to a return order was infringed. By the same token there has been no infringement of Article 47 of the Charter.
Facts:
Decision & reasoning:
The right to get to know the evidence gathered in the case files constitute an element of the right to participate actively in the proceedings before administrative authorities and the right to court. These rights were limited because of the denial of access to classified information, but it does not mean they were excluded.
Allegation that the Voivodeship Administrative Court in Warsaw denied access to the classified information by the professional legal representative of the foreigner who had been authorised to access them is unjustifiable.
Under Polish law there is no institution of a special legal representative that would be authorised to access classified information. However, the lack of such an institution does not make the Polish system incompatible with the ECHR. The institution of the special legal representative authorised to access the classified information is not the only solution that would ensure meeting the Convention’s requirements. The foreigner, represented by his legal representative, had three remedies at their disposal.
The first one was the request for reconsideration of the case by the administrative authority. The administrative authority, while examining this request, analyses the facts of the case again. The second remedy was the complaint to the Voivodeship Administrative Court. The Court, while examining the complaint, is not bound by the allegations included in the complaint and takes into account all the possible shortcomings in the course of the administrative proceedings. The third remedy is the cassation complaint to the Supreme Administrative Court, which – as required by the law – has to be prepared by the professional legal representative who can include such allegations that would make the control of the Supreme Administrative Court as wide as possible, including the factual circumstances of the case. In the opinion of the Supreme Administrative Court the legal remedy allowing the Court of the first instance to take into consideration all the shortcomings during the proceedings ex officio ensures effective protection to the same extent as the institution of the special legal representative authorised to access classified information. The special legal representative is independent and cannot pass the classified information to the party. This institution makes sense in other legal systems, where the court does not act ex officio and takes into account only the arguments brought up by the party.
Infringing the provision of the Directive can only be brought up if the Directive was not transposed into the national legal order or the transposition was faulty. The provisions of the Return Directive were transposed into the Polish legal order. In the opinion of the Supreme Administrative Court there is no reason to claim that the transposition did not allow for the achievement of the Directive’s aims. Limiting the possibility to access the classified information to the third country national does not automatically mean that their right to an effective remedy with regard to the return order was infringed. For the same reason there has been no infringement of article 47 of the Charter.
Taking into considerations these arguments, according to the Supreme Administrative Court there was no justification to submit a request for preliminary ruling to the CJEU. In the opinion of the Court the limitation of the possibility to access classified information is applicable regardless of the place of stay of the third country national concerned (whether he is still in Poland or has already returned).
Outcome:
The information on the basis of which the third country national had been expelled was not disclosed to his legal representative.
Observations/comments:
The judgement is available at: http://orzeczenia.nsa.gov.pl/doc/4FB0E19293
The HFHR joined the proceedings as a third party and one of the HRHR lawyers represented the client.