Poland - Ruling of the Supreme Administrative Court from 9 September 2016 II OSK 61/15 dismissing the cassation complaint against a return decision of a third country national

Country of Decision:
Country of Applicant:
Date of Decision:
09-09-2016
Citation:
II OSK 61/15
Court Name:
Supreme Administrative Court
National / Other Legislative Provisions:
Poland - Article 31(3) of the Constitution of the Republic of Poland
Poland - Article 88(1)5 of the 2003 Law on foreigners
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Headnote: 

In order to protect the security of state and public order, it is justifiable to limit freedoms and rights, including the right to court. The right to court covers the possibility to access case files by the party of the proceedings as well as the possibility to get to know the motives of the decision and formulate allegations against them. When there is a need to protect the security of state and public order, the rights of the party of the proceedings are limited. The party cannot get to know the motives of the decisions and has to rely on the fair judgement of the authority.

The courts as well as the administrative authorities got to know the motives of the decision and had a possibility to verify them in the context of the legal conditions in return proceedings. Their assessment is binding and sufficient. Assessment of the authorities is subject to control of legality in administrative court proceedings, so it cannot be stated that the actions of the authority are out of control.

The Supreme Administrative Court rules that Article 12(1)2 of the Return Directive which allows for non-disclosure of certain facts of the return decision for the reasons of national security is a specific law applicable in return cases and to that extent it excludes the general safeguards envisaged in 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 gave a basis to issue him a return decision in administrative proceedings and was eventually expelled. The legal representative of the third country national claimed before a Voivodeship Administrative Court in Warsaw (I instance) and before the Supreme Administrative Court (II instance) that refusing access to classified information made it impossible to actively participate in the return proceedings, to present arguments against return and to effectively challenge the decision on return (violation of Article 1(1) of Protocol 7 to the ECHR, violation of Article 13(1) of the Return Directive combined with Article 47 of the CFREU). In the complaint the legal representative requested the interpretation of the relevant provisions of the Law on foreigners in the light of the Constitution by a Constitutional Tribunal and pointed at the lack of clarity of the EU legal provisions (whether limiting access to files is consistent with the right to effective remedy before a court) and asked to submit a request for preliminary ruling CJEU. The Voivodeship Administrative Court in Warsaw dismissed the complaint and so did the Supreme Administrative Court with the cassation complaint. 

Decision & Reasoning: 

The Supreme Administrative Court observes that contrary to what is claimed by the applicant, Article 1(1) of Protocol 7 does not give a basis for a third country national to get to know the motives of the return order, issued under the law for the reasons of security and public order, even after the return operation was conducted.

Confidentiality of data, which confirmed the threat to public order and security of State, made it impossible for the administrative authorities and the court to disclose the motives of the return order to the applicant and his legal representative and enable them to formulate allegations. This is not a bad will of the court or the authority which decided not to disclose this information to the party. When there is a legal obligation to protect classified information, one cannot request to disclose it to the persons which are affected by it, but were not authorised to access this information. Of course the party has a right to get to know the basis of the decision concerning them but within the law. When the legal regulations – law on protection of classified data and  Article 31(3) of the Constitution – envisage limitations of rights and freedoms, including the right to court, it cannot be said that the authorities and courts applying this regulations act contrary to the law. Classified information can be disclosed only to certain persons or institutions.

The Court as well as the administrative authorities got to know the motives of the decision and had a possibility to verify them in the context of the legal conditions in return proceedings. Their assessment is binding and sufficient. Assessment of the authorities is subject to control of legality in administrative court proceedings, so it cannot be stated that the actions of the authority are out of control. The Voivodeship Administrative Court in Warsaw had a possibility to access classified data, which it used and on the basis of this information it could objectively rule on the validity of the administrative decision. The Supreme Administrative Court also got to know the motives of the request of the Internal Security Agency for expelling the third country national and states that the authority as well as the court of the first instance rightfully claimed that the return is necessary for the protection of the security of state and public order, under Article 88(1)5 of the 2003 Law on foreigners.

If the information coming from the authority responsible for protection of the security of state – i.e. the Internal Security Agency – confirms that the further stay of the third country national concerned poses a threat to the security of State or public order, it means that in order to protect these values, it is justifiable to limit freedoms and rights, including the right to court.

The right to court covers the possibility to access case files by the party of the proceedings as well as the possibility to get to know the motives of the decision and formulate allegations against them. When the need to protect the values from Article 31(3) of the Constitution arises, the rights of the party of the proceedings are limited. The party cannot get to know the motives of the decisions and has to rely on the fair judgement of the authority. If the authorities within their competence decided that the classified data contain valuable, credible and justifiable information that further stay of the third country national concerned posed a threat to the security of state and public order, the procedural guarantees of the party in the present case were ensured. The Supreme Administrative Court assessed the classified data in detail and in order to be absolutely sure of its conclusion, requested the Internal Security Agency to provide additional information, which in the opinion of the Court confirms the validity of the administrative decision.

With regard to a motion of the legal representative of the third country national to submit a request for a preliminary ruling to the CJEU, the Supreme Administrative Court does not find it necessary to rule on the present case. Article 12(1)2 of the Return Directive which allows for the non-disclosure of certain facts of the return decision for the reasons of national security is a specific law applicable in return cases and to that extent it excludes the general safeguards envisaged in Article 47 of the Charter.

Outcome: 

The third country national had been expelled and remains outside of Poland.

Observations/Comments: 

The judgement is available at: http://orzeczenia.nsa.gov.pl/doc/870644DFDD

This judgement concerns the same case as the judgement II OSK 2586/14, also available on EDAL.

The HFHR joined the proceedings as a third party and one of the HRHR lawyers represented the client. 

Other sources cited: 

Article 1 section 1 of the Protocol no 7 ECHR