Poland - Ruling of the Regional Court in Przemysl from 23 May 2016 no II Kz 69/16 quashing the ruling of the District Court in Przemysl on prolonging the detention

Country of Decision:
Country of Applicant:
Date of Decision:
23-05-2016
Citation:
II Kz 69/16
Court Name:
Regional Court in Przemysl
Keywords:
Relevant Legislative Provisions:
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > EN - Treaty on the Functioning of the European Union 2010/C 83/01 - Art 288
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 15 > 5.
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 15 > 6.
National / Other Legislative Provisions:
Poland - Law of 12 December 2013 on Foreigners
Poland - Law of 12 December 2013 on Foreigners - Article 403(5)
Poland - Constitution of the Republic of Poland - Article 91(3)
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Headnote: 

The Court found that the national legal provision was incompatible with the Returns Directive. Lodging a complaint against the return decision to the court cannot be a reason for prolonging detention under the Directive. 

Facts: 

The applicant was apprehended while trying to cross the border irregularly from Poland to Germany. He was placed in detention and return proceedings to his country of origin were launched. Afterwards he submitted an asylum application, which was considered negative by both administrative instances (the Office for Foreigners and the Refugee Board). The applicant lodged a complaint against the negative asylum proceedings decisions to the Voivodeship Administrative Court in Warsaw. The Court has not yet ruled on the case.

After the Refugee Board issued their decision on the asylum application, the return proceedings were reopened. Both instances (The Commander of the Border Guard Unit and the Office for Foreigners) decided on the return of the applicant. The applicant lodged a complaint against the return decision to the Voivodeship Administrative Court in Warsaw. The Court has not yet ruled on the case.

Meanwhile, the District Court in Przemysl prolonged the detention of the returnee for 6 months, relying in its ruling on article 403 section 5 of the 2013 Law on Foreigners. The applicant appealed against this ruling to the Regional Court, which held as follows.

Decision & Reasoning: 

The Court held that the District Court relied on the provision which is incompatible with article 15 (6) of the Return Directive (RD). Article 403 section 5 of the 2013 Law on Foreigners reads that in case a third country national lodged a complaint to the administrative court against a return decision together with a request for suspension of its execution, the period of stay in a detention centre can be prolonged to 18 months and the court can issue one ruling prolonging the detention for 6 months. However, under article 15 (5) and (6) of the RD, the Member States can prolong the detention for the period exceeding the maximum of 6 months for another 12 months only under these two circumstances: the lack of cooperation of a third country national and delays in obtaining necessary documentation from third countries. Exercising in practice the right to an effective remedy is surely not one of them, which has been made clear by the Court of Justice of the European Union in the case C-357/09 Kadzoev.

When the EU directive is transposed into the national legal order, the Member States cannot modify its provisions. It would be incompatible with the rule expressed in article 2 (2) of the TFEU. The Member States were obliged to apply any general and specific measures which would enable implementation of the obligations set in the Treaties and other acts of the European institutions and to refrain from applying measures that would undermine the aims of the EU. This is what is called the rule of loyal cooperation or solidarity. This rule is related to the rule of effectiveness of EU law (effet utile).

The CJEU in its jurisprudence confirmed that the EU (Community) formed a new legal order. Because of its specific character no national legal provisions can interfere with it. In its judgement in the case Costa V ENEL the CJEU ruled that EU law has an absolute supremacy over national laws. In the judgement International Handelgesselshaft the CJEU held that relying on national legal provisions in order to verify the validity of the measures adopted by EU institutions could have a bad influence on the uniform application and effectiveness of EU law. In consequence, the validity of EU law cannot be undermined by claiming their incompatibility with the rules envisaged in the Constitution. Acceptance of supremacy of EU law and  the CJEU, as a jurisprudential authority, was also in the Declaration no 17 to the Lisbon Treaty.

In the Simmenthal case the CJEU ruled that the national court is obliged to apply EU law if national law is incompatible with  EU law, without waiting for the national provision to be repealed. This is crucial to understand that the result of the supremacy rule is not the invalidity of the national provision but the obligation to refrain from applying it. This mechanism is additionally supported by article 91 section 3 of the Constitution of the Republic of Poland.

The directive is an EU legal instrument that should be transposed into the national legal order. The provisions of the directive – also of the RD - can also be applied directly. This was confirmed in the El-Dridi case by the CJEU. If the provision of the directive is unconditional and sufficiently precise it can be relied on by individuals.

Finally, when Poland joined the EU, a judge became a judge of EU law first and foremost. This interpretation is consistent with the rulings of the Supreme Court III SK 23/12 and II KK 55/14.

In the light of the above, there were no legal conditions to prolong the detention in the present case. 

Outcome: 

Quashing the ruling on prolonging detention and releasing the applicant.

Observations/Comments: 

Judgement available at: http://www.hfhr.pl/wp-content/uploads/2016/05/postanowienie-MN-anonim.pd...

The Helsinki Foundation for Human Rights submitted amicus curiae in this case.

For an in depth commentary on the incompatibility of Article 403 section 5 of the 2013 Law on Foreigners with the Return Directive please see: Karolina Rusiłowicz, Prolonging detention under the Return Directive in Poland, EDAL.

Case Law Cited: 

Poland - Ruling of the Supreme Court II KK 55/14

Poland - Ruling of the Supreme Court III SK 23/12

CJEU - 106/77 Simmenthal II

CJEU 11/70 Internationale Handelsgesellschaft

CJEU - 6/64 Costa/ENEL