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:
Country of Applicant:
Date of Decision:
29-06-2016
Citation:
II OSK2586/14
Court Name:
Supreme Administrative Court
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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: 
The third country national, who had a permanent stay permit in Poland, was issued a decision on return on the basis of classified information. The proceedings were initiated by the Internal Security Agency. The foreigner submitted a request to access the files both in the first instance and the second instance proceedings. He was refused access to any factual information that provided reasons for the return decision. The refusal in the second instance proceedings was issued by the Head of the Office for Foreigners. 
The third country national submitted a request for reconsideration to the same authority which was again dismissed and then submitted a complaint to the Voivodeship Administrative Court in Warsaw. The third country national was expelled before the Court ruled on the case. The legal representative of the third country national claimed that refusing access to classified information made it impossible to actively participate in the proceedings, to present arguments against return and effectively challenge the decision on return (violation of article 1 section 1 of the Protocol no 7 to the ECHR). In the complaint the legal representative pointed to the lack of clarity of the EU legal provisions (whether limiting access to files is consistent with article 47 of the Charter) and asked the Court to submit a request for a preliminary ruling to the CJEU. The Court dismissed the complaint and the request, so the legal representative lodged a cassation complaint to the Supreme Administrative Court and asked this Court to submit a request for a preliminary ruling to the CJEU. 
 
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.