Poland - Judgement of the Voivodeship Administrative Court in Warsaw from 16 March 2015 IV SA/Wa 974/14 dismissing the complaint against the decision of the Refugee Board refusing international protection
| Country of Decision: | Poland |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Voivodeship Administrative Court in Warsaw |
| Date of decision: | 16-03-2015 |
| Citation: | IV SA/Wa 974/14 |
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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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. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The administrative authorities ensured an adequate standard of proceedings and had correctly established the facts in a case of an applicant who had only brought up the argument that she was a victim of domestic violence at the court stage.
The Court does not accept the allegations that the applicant was deprived of her right to court because she and her children were deported before the deadline for the complaint to the court. The complaint was eventually lodged within the deadline which means she could benefit from the real possibility of applying this measure so her right to court was not infringed. Therefore the Court sees no need to request the Constitutional Tribunal to take a stand on this issue.
Facts:
The third country national applied for refugee status in Poland. He claimed he had been persecuted and beaten in the country of origin. The application covered his spouse and five children. The proceedings were discontinued because the applicants left Poland but was reopened once they were transferred back. During the interview the applicant stated that he had been beaten by unknown persons and after this incident other people searched for him. His wife was also interviewed in the proceedings. She confirmed the statements of his husband and said she was not subject to violence. The Head of the Office refused granting protection to the applicants and the Refugee Board confirmed this decision.
The complaint to the Voivodeship Administrative Court was submitted by the spouse of the applicant since the main applicant returned to the country of origin. She complained that the authorities had not examined her situation as a woman and as a victim of domestic violence. She attached some evidence including: psychiatric and psychologist opinions from the detention centre in which she was placed together with the children and police report on mistreatment by her husband from Germany. She also advanced that she was deprived of the right to court as she had been deported before she could lodge the complaint to the court. Before the return took place, she had also submitted a subsequent application for international protection stating she had been a victim of domestic violence.
Decision & reasoning:
The Court noted that a one-time incident of violence that the husband was subject to, not supported by a statement of any eyewitnesses, does not fulfil the conditions to be granted international protection. The administrative authorities rightfully decided not to qualify it as a basis to grant protection.
During the trial which took place on 3 March 2015 the Court decided to admit as evidence the documents attached to the complaint. It should be noted that the law allows for such a step only in extraordinary circumstances, because generally the court is obliged to rule on the basis of the case files. It is the administrative authority which is obliged to clarify all the facts and gather evidence. The administrative court cannot replace the authority in doing it, as its competence is only to control the legality of the decision issued on the basis of the established facts in administrative proceedings.
In the present case the Court decided to take the evidence in order to compare it to the statements of the applicant in the case files, including her interview, and noted that the evidence brought before the Court does not give any justifiable basis to claim that establishing the facts was doubtful. The applicant did not indicate that she was a victim of domestic violence at any stage of the proceedings. During her interview she did not bring up any such circumstance. After the interview was finished she stated that she had understood all the questions and did not submit any evidence. She did not have any comments as to the way she was questioned or interpretation. During the appeal proceedings she did not mention either the psychiatric and psychologist’s opinion or the criminal proceedings in Germany.
Taking into account the passive attitude of the applicant at the stage of administrative proceedings and yet formulating motions contrary to the complaint and the documents supporting it, the Court found that the administrative authorities ensured an adequate standard of proceedings and that the administrative decisions had correctly established the facts. . .
The Court does not accept the allegations that the applicant was deprived of her right to court because she and her children were deported before the deadline for the complaint to the court. The complaint was eventually lodged within the deadline which means she could benefit from the real possibility of applying this measure so her right to court was not infringed. Therefore, the Court sees no need to request the Constitutional Tribunal to take a stand on this issue.
Outcome:
Complaint was dismissed.
Observations/comments:
The judgement is available at: http://orzeczenia.nsa.gov.pl/doc/717F15AC1F.