Communicated on 18 January 2018
FIRST SECTION
Application no. 15114/17
Azar ORUJOV
against Poland
lodged on 17 February 2017
STATEMENT OF FACTS
The applicant, Mr Azar Orujov, is an Azerbaijani national who was born in 1986 and lives in Ivano-Frankivsk, Ukraine. He is represented before the Court by Mr J. Białas of the Helsinki Foundation for Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
From 2008 until 24 December 2013 the applicant, resided in Poland on the basis of a series of short-term visas issued by the Polish consul in Baku and valid work permits.
His wife, who is a Ukrainian national, and their two children (born in 2013 and in 2016) still reside in Poland.
2. Proceedings concerning the applicant’s expulsion
(a) Main proceedings
On 7 October 2013 the head of the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego) issued a request to have the applicant expelled under section 88(1)(5) of the Aliens Act (Ustawa o cudzoziemcach) on the grounds that “his continued stay in Poland would constitute a threat to the State’s defence or the security of the State, or to the protection of public security and public order, or otherwise threaten the interests of the Republic of Poland”. In view of the confidential information contained in the reasoning of this request, the relevant part of the document was to be disclosed to the administrative authority separately.
On 14 October 2013 the Małopolska Governor (Wojewoda Malopolski) issued a notice about the opening of the proceedings concerning the applicant’s expulsion.
On 18 October 2013 the applicant lodged an interlocutory appeal against that decision. Subsequently, he filed numerous requests not to be expelled.
On 18 December 2013 the applicant consulted the non-classified part of his case file.
On 19 December 2013 the Małopolska Governor decided to expel the applicant from Poland, as sought by the Internal Security Agency.
The authority (the governor) had heard the applicant, who had made the following statements, in so far as relevant, for the record: he had not been persecuted in Azerbaijan; in the event of his forced return there, he feared being drafted into the army in view of the ongoing conflict with Armenia; because his mother was of Armenian origin and he was a Russian-speaking national, his life in Azerbaijan would be full of difficulties; he had strong links with Poland, as his wife (who was Ukrainian and whom he had met in 2010 and married in 2013) lived here on the basis of a valid temporary residence permit; this was where the couple’s first child had been born, where they had bought an apartment, and where the applicant worked under a permanent contract with the company Shell as a trainer of Russian‑speaking staff. The authority obtained various official documents confirming the status of the applicant’s family in Poland.
On the basis of this and the classified material, the authority held that the applicant’s continued stay in Poland would constitute a threat to the State’s defence or national security, or to the protection of public security and public order, or otherwise threaten the interests of the Republic of Poland. The authority also stated that no grounds existed for granting the applicant a “tolerated stay”, and it dispensed with its obligation to give further reasons for the decision owing to matters of national security. The authority also noted that it was dispensing with its obligation to give any further reasons for its decision in line with section 8 of the Aliens Act, read in conjunction with Article 107 § 5 of the Code of Administrative Procedure (Kodeks Postępowania Administracyjnego). Lastly, an immediate enforcement clause was attached to the decision.
On the same day the applicant was arrested pending his expulsion.
On the same day he appealed against the expulsion decision and asked for a stay of its enforcement. In his appeal, he argued: that he had unjustly been considered a national security threat; that Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention had been breached, essentially because he had not been able to effectively defend his rights in view of the classification of a part of the file and the lack of reasoning in the impugned decision; and that his right to respect for his family life had not been given sufficient consideration. The applicant further relied on Article 13 of the Convention and made extensive references to the case-law of this Court and the Court of Justice of the European Union.
On 24 December 2013 the applicant was expelled from Poland.
On 9 January 2014 the head of the Office for Foreigners (Urząd do spraw Uchodźców) rejected the applicant’s application for a stay of the enforcement of the expulsion decision.
On 12 March 2014 the head of the Office for Foreigners upheld the first‑instance decision on the applicant’s expulsion, reiterating the findings of the lower authority and relying mainly on the absolute nature of section 88 of the Aliens Act.
The applicant appealed on the grounds he had referred to originally.
On 7 October 2014 the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny) upheld the second‑instance decision on the applicant’s expulsion. The court observed, inter alia, that the veracity of the information concerning the applicant’s life in Poland was immaterial to the case, as those facts had not formed the basis of the expulsion decision.
On 9 September 2016 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed a cassation appeal by the applicant, observing, inter alia, that the analysis of the secret material which had been made by the authorised organs was binding and sufficient. Moreover, the analysis in question had been scrutinised by the courts, which had had access to all parts of the case file and which could have objectively verified the reasons for the applicant’s expulsion. The fact that the courts had had an opportunity to review the evidence was thus considered sufficient in terms of respect for the applicant’s procedural rights.
(b) Access to the file of the first-instance administrative authority
On 14 October 2013 the Małopolska Governor decided to sever part of the case file and classify it as “secret” (tajne) within the meaning of section 5(2) of the Law of 5 August 2010 on protection of classified information (Ustawa o ochronie informacji niejawnych, “the 2010 Act”), and under Article 74 of the Code of Administrative Procedure (no. WO‑V.6154.1.21.2913).
On 24 October 2013 the applicant lodged an interlocutory appeal against that decision, arguing that such a restriction of his and his lawyer’s right would breach his rights as guaranteed by the Polish Constitution and Articles 6, 8, and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention. The applicant elaborated on these arguments extensively, making reference to the Court’s case‑law.
On 26 November 2013 the head of the Office for Foreigners upheld the governor’s decision refusing access to the file on the grounds that, under the applicable law, no access to a classified case file could be granted by the administrative authority.
On 23 December 2013 the applicant appealed against the decision of 26 November 2013 on access to the file, essentially repeating his original arguments. On 16 March 2014 the applicant’s lawyer completed that appeal, additionally invoking Article 1 of Protocol No. 7 to the Convention and asking that the Constitutional Court (Trybunał Konstytucyjny) and the Court of Justice of the European Union be formally consulted to resolve the issue of the compatibility of the applicable provisions of Polish law with, inter alia, Article 1 of Protocol No. 7 to the Convention.
On 15 May 2014 the Warsaw Regional Administrative Court dismissed the appeal concerning access to the case file, holding that the case fell under the permissible exceptions within the meaning of Article 1 of Protocol No. 7 to the Convention.
On 1 August 2014 the applicant’s lawyer lodged a cassation appeal against the above decision on access to the file, invoking, inter alia, Article 1 of Protocol No. 7 to the Convention.
On 29 June 2016 the Supreme Administrative Court dismissed the cassation appeal, holding that the lower court and authorities had not erred in their application of Articles 73 and 74 of the Code of Administrative Procedure.
(c) Access to the file of the second-instance administrative authority
On 9 January 2014 the head of the Office for Foreigners refused to grant access to the documents containing information classified as “secret” (decision no. DL‑I‑412‑1959/13/1).
On 18 January 2014 the applicant’s lawyer filed a new application for access to the case file, relying on Article 13 of the Convention and Article 1 of Protocol No. 7 to the Convention.
On 11 February 2014 the head of the Office for Foreigners refused to grant access to the documents containing information classified as “secret” (decision no. DL‑I-4107-90/14/18).
On 18 March 2014 the applicant’s lawyer appealed against that decision on the same grounds as those referred to in his previous appeals as described above.
On 2 June 2014 the Warsaw Regional Administrative Court upheld the decision of 11 February 2014.
On 11 August 2014 the applicant’s lawyers lodged a cassation appeal against that judgment.
On 29 June 2016 the Supreme Administrative Court dismissed the cassation appeal.
3. Proceedings concerning the applicant’s temporary residence permit
On 27 June 2013 the applicant applied for a temporary residence permit.
On 3 October 2013 the Małopolska Governor barred the applicant from accessing the case file for those proceedings. On 7 October 2013 the applicant appealed against that decision.
On 21 October 2013 the Małopolska Governor dismissed the applicant’s application for a temporary residence permit, relying on the national security and deciding not to indicate factual grounds for the decision.
On an unspecified date the applicant appealed, arguing that Poland had for many years been a centre of his life and that he had his family there. He also submitted that he did not pose a national security threat.
On 13 December 2013 the head of the Office for Foreigners refused to grant the applicant access to the documents containing information classified as “secret”.
No further appeal against that decision was available to the applicant. It appears that the applicant did not use his right to lodge a new application for access to the case file.
On 15 April 2014 the head of the Office for Foreigners upheld the decision refusing to grant the applicant a residence permit. On 23 April 2014 the head of the Office for Foreigners issued a corrigendum of that decision.
On 23 October 2014 the Warsaw Regional Administrative Court dismissed the applicant’s appeal.
On 9 September 2016 the Supreme Administrative Court dismissed a cassation appeal by the applicant which had been lodged by the applicant’s lawyer on 27 January 2015.
B. Relevant domestic law and practice
1. Aliens Act
Under section 88(1)(5) of the Aliens Act of 13 June 2003 (Ustawa o cudzoziemcach), a foreigner shall be expelled from Poland in the event that his or her continued stay would constitute a threat to the State’s defences or national security, or to the protection of public security and public order, or otherwise threaten the interests of the Republic of Poland.
Section 89(1) of the Aliens Act provides that a foreigner shall not be deported in the event that he or she: (i) is entitled to be granted a “tolerated stay”; (ii) is married to a Polish citizen or to a foreigner who has a permanent resident permit ...; (iii) is staying in Poland on the basis of a Schengen visa ...; or (iv) has a valid residence permit or other permit entitling him or her to reside in Poland which is issued by a third Schengen country, provided that his or her stay does not threaten national security or safety, or the public order or interests of the Republic of Poland.
Section 97(1)(1a) of the Aliens Act guarantees the right to a “tolerated stay” to a foreigner whose expulsion would breach his right to respect for family life within the meaning of the Convention. This provision expressly states that it is not applicable in the event that the continued stay of the foreigner in Poland poses a threat to national defence or security, public order or the interests of the country.
2. Code of Administrative Procedure
Articles 9, 10 and 73 of the Code of Administrative Procedure establish respectively the principles of the rule of law and public proceedings (jawność postępowania), and the right of a party to proceedings to have access to a case file. Article 74 of that Code sets out an exception to the rule regarding the right of a party to proceedings to have access to a case file by providing that a decision shall be issued to restrict the access of a party to a case file containing secret or top secret information. Such a decision is open to an interlocutory appeal.
3. The 2010 Act
Section 5 of the Law on the protection of classified information accords four levels of protection depending on the importance of the classified material, namely “top secret”, “secret”, “confidential” and “restricted”. Under section 5(2) of this law, classified information shall be rated “secret” in the event that its unauthorised disclosure would cause a grave damage to the interests of the Republic of Poland. Section 8 of this law provides that secret information shall only be disclosed to authorised persons in line with further provisions.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 7 to the Convention that he was arbitrarily expelled in line with decisions which were issued with various procedural shortcomings, which had repercussions on his right to know the reasons for his expulsion on the grounds that he posed a threat to national security; his right to have adequate legal representation and defence; and his right to have proper adversarial proceedings.
In particular, the applicant makes the following complaints: (i) the impugned decision on his expulsion did not contain any reasoning; (ii) the expulsion decision was immediately enforced, and his appeal did not have a suspensive effect; (iii) neither he nor his lawyer was granted access to the files for his expulsion case during either the administrative or court proceedings; (iv) the decisions refusing access to the case files did not contain reasons.
Invoking Article 13 in conjunction with Article 8 of the Convention, the applicant also complains that his expulsion and the refusal to grant him a temporary residence permit violated his right to family life, as his wife and his young children legally reside in Poland. In particular, he alleges that the authorities deciding on his expulsion and his residence permit did not take into consideration his family situation and the proportionality of the inference with his Article 8 rights. Moreover, as the applicant could not present arguments against his expulsion and did not have access to the case files which were classified as “secret”, he complains that he was deprived of an effective remedy against the decisions taken in both sets of proceedings.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, on account of his expulsion and/or on account of the refusal to issue the applicant with a residence permit in Poland (see mutatis mutandis, Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; and Slivenko v. Latvia (dec.) [GC], no. 48321/99, ECHR 2002‑II (extracts))?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention? In particular, did the courts submit to meaningful scrutiny the grounds relied on by the executive for the applicant’s expulsion and examine whether this expulsion was necessary in a democratic society (see, mutatis mutandis, C.G. and Others, cited above, §§ 55‑65)?
3. Did the decision to expel the applicant comply with the requirements of paragraphs 1 and 2 of Article 1 of Protocol No. 7 (see, mutatis mutandis, C.G. and Others, cited above, §§ 70‑80)?
Full & Egal Universal Law Academy