Poland, Supreme Administrative Court, 9 September 2016 II OSK 61/15

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Article 31(3), 45(1) and 78 of the Constitution of the Republic of Poland
• Article 88(1)5 of the 2003 Law on foreigners
• Article 5(2) and 8 of the Law on protection of classified information

• Article 47 and 51(1) of the Charter of Fundamental Rights of the EU
• Returns Directive- Directive 2008/115/EC of 16 December 2008, article 12 and 13

Summary of the case

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 the Supreme Administrative Court dismissed the cassation complaint. 

• Administrative judicial enforcement

annulment of the administrative decision

The Supreme Administrative Court observed that contrary to what was claimed by the applicant, Article 1(1) of Protocol 7 did not give a basis for a third country national to get to know the motives of the return order for the reasons of security and public order, even after the return operation had been 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. 

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 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 national security 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.

Role of the Charter and role of the general principles on enforcement

The Court found that 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. The Court stressed that the national law on protection of classified information envisage the same derogation so it was not necessary to rely on the EU law. To this extent the Court found it not necessary to submit a request for preliminary ruling to CJEU.

• The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy
• The obligation of the administration to give reasons for its decisions
• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal
• Explicit reference to Art. 6 ECHR

Article 45 of the Constitution – right to court

Article 51 (2) of the Constitution – right to access to official documents and data collections

Article 31(3) of the Constitution - proportionality

• Proportionality

The Court stated that 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 these regulations act contrary to the law.

Additional notes on the decision

In previous years the NGO Helsinki Foundation for Human Rights litigated a case of a Moroccan national, who was also refused a temporary stay permit and expelled on the basis of classified information presented by the Internal Security Agency, and a case of a Belarusian national, who was refused Polish citizenship, had his permanent stay permit revoked and was expelled on the basis of classified information provided by the same Agency.