Published on 25 October 2021

FIRST SECTION

Application no. 63012/19 Ameer ALKHAWLANY against Poland lodged on 28 November 2019 communicated on 8 October 2021

STATEMENT OF FACTS

1. The applicant, Mr Ameer Alkhawlany, is an Iraqi national who was born in 1986 and lives in Baqubah, Iraq. He is represented before the Court by Mr M. Åšliz, a lawyer practising in Cracow.

The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant arrived in Poland in 2014. He resided legally in Cracow, first with the status of a university student and later as a PhD fellow in biology.

4. On 17 August 2016, after a routine vetting, he was granted the latest in a series of residence permits. That permit was valid until 17 August 2017.

5. The applicant submitted that, from July to September 2016, the Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ) approached him, seeking to recruit him for the Polish intelligence service. The applicant declined the offer and subsequently became the subject of stalking and threats at the hands of internal security agents.

6. On 28 September 2016 the head of the Internal Security Agency filed with the head of the Karpacki Division of the National Border Guard ( Komendant Karpackiego Oddziału Straży Granicznej ) an application to have the applicant expelled from Poland under Section 302 (3) of the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – hereinafter “the 2013 Act”), that is, on the grounds that such measure was “necessary for security and safety of the country, and public order” or that it was “in the interest” of the State. It appears that this application contained a classified reasoning part.

7. On the same day, the Karpacki Division of the National Border Guard instituted proceedings with a view to the applicant’s expulsion on the grounds that, in the light of the evidence that had been obtained by the Internal Security Agency, the applicant was a threat to national security. It was stated that, given that the evidentiary material in question had been classified, the decision to institute expulsion proceedings was not reasoned any further.

8. On 3 October 2016 the Karpacki Division of the National Border Guard ordered the applicant’s return to Iraq and barred him for five years from re ‑ entering Poland or any other country in the Schengen zone. The impugned decision did not indicate any date by which the applicant should leave the country. The decision stated that, as established by the Internal Security Agency, the applicant was a threat to national security. The decision did not contain any details pertaining to the national security considerations.

9. On 14 October 2016 the applicant’s lawyer appealed against that decision, arguing essentially that the applicant had not been informed of the alleged facts of the case which led to the conclusion that he posed a threat to national security. On 28 October 2016 the applicant’s lawyer completed his appeal, asking that the applicant be allowed to make submissions concerning the recruitment attempts made by the Internal Security Agency (see paragraph 5 above), as well as that various documents concerning the applicant’s legal residence in Poland and his address in Cracow be admitted as evidence.

10. On 21 October 2016 the applicant’s lawyer asked the Karpacki Division of the National Border Guard to grant him access to the classified reasoning part of the application filed by the head of the Internal Security Agency with the Karpacki Division of the National Border Guard on 28 or 29 September 2016 (see paragraph 6 above).

11. On 10 November 2016 the applicant’s lawyer filed a similar application with the Aliens Office ( Urząd do Spraw Cudzoziemców).

12. On 21 November 2016 the head of the Aliens Office adjourned of its own motion the appellate proceedings in question because on 10 June 2016 the applicant had applied for international protection (see paragraph 29 below) and those proceedings were ongoing.

13. On 6 April 2017 the head of the Aliens Office resumed, of its own motion, the expulsion proceedings since the administrative part of the applicant’s asylum proceedings had ended with a final decision unfavourable for him.

14. On 1 July 2017 the head of the Aliens Office decided to uphold the decision ordering the applicant’s return to Iraq issued by the Karpacki Division of the National Border Guard on 3 October 2016.

15. On 17 August 2017 the applicant’s lawyer appealed against that decision to the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ). On 18 August 2017 the Helsinki Foundation for Human Rights lodged its own appeal against the decision of the head of the Aliens Office dated 1 July 2017.

16. On 12 April 2018 the Warsaw Regional Administrative Court dismissed both appeals.

17. On 10 July 2018 the Helsinki Foundation for Human Rights lodged a a cassation appeal against that decision. On 10 October 2018 the applicant’s lawyer lodged a similar cassation appeal.

18. On 30 May 2019 the Supreme Administrative Court ( Naczelny SÄ…d Administracyjny ) dismissed both cassation appeals.

19. On 3 October 2016 the applicant was arrested by the officers of the Karpacki Division of the National Border Guard. He was served with the decision ordering his return to Iraq that was issued on the same day by the Karpacki Division of the National Border Guard (see paragraph 8 above).

20. On 3 October 2016 the head of the Karpacki Division of the National Border Guard filed with a court a request to have the applicant placed in administrative detention in a detention centre for foreigners.

21. On 3 October 2016 the Cracow District Court ( Sąd Rejonowy ) detained the applicant with a view to his expulsion. The court ruled that, in the light of the decision that the applicant should leave the country – which had been taken on the basis of the classified material – there was a real risk that he would abscond. Moreover, because the decision in question did not indicate any deadline for the applicant’s departure from Poland, the court reasoned that detaining the applicant in a detention centre (and not in a guarded centre for aliens) was the only means of ensuring the effective enforcement of the decision.

22. It appears that at the court session held on the same day, the applicant was shown the unclassified part of the case file, that is to say, presumably the decision of the Karpacki Division of the National Border Guard dated 3 October 2016. Before the Cracow District Court, the applicant stated that he did not know why he was being detained.

23. On 8 September 2016 the applicant’s lawyer appealed against the decision on the applicant’s detention, raising the following arguments. (i) The applicant had not been able to consult the material on the basis of which he had been detained and had not been informed of the possibility of having a lawyer represent him. (ii) The court had erred in considering, on the basis of the confidential material, that the applicant had to necessarily be detained in a detention centre for foreigner because he would not abide by the rules of a guarded centre for foreigners.

24. On 21 October 2016 the Cracow Regional Court ( SÄ…d OkrÄ™gowy ) upheld the first-instance detention decision, observing that the expulsion decision that had engendered the applicant’s detention had been outside the scope of the substantive review of the court that was reviewing the detention measure. The Cracow Regional Court then found that the first-instance court had ordered the applicant’s detention relying exclusively on the non ‑ classified information, “having assumed intuitively that the classified material that had justified the expulsion decision [in respect of the applicant] must have probably also contained reasons justifying the applicant’s [detention]”. The first-instance court ordering the applicant’s detention had thus not had knowledge of the classified information regarding the applicant. During the appellate proceedings the Cracow Regional Court had asked for, and been granted, access to the classified reasoning part of the application filed by the head of the Internal Security Agency filed with the Karpacki Division of the National Border Guard on 28 or 29 September 2016 (see paragraph 6 above). In the light of this material, the Cracow Regional Court concluded that the first-instance court’s decision to have the applicant detained in a remand centre was not erroneous. In particular, there was a risk that the applicant would attempt to stay far away from any guarded centre for aliens or to break the centre’s internal rules. He might have also attempted to obstruct the proper course of the proceedings. Lastly, the appellate court found that the applicant had been instructed about his rights, including the right to contact a lawyer.

25. On 13 October 2016 and 3 January 2017, the Przemyśl District Court extended the applicant’s detention on the grounds that information regarding his application for international protection had to be obtained.

26. The applicant’s lawyer appealed against the latter decision.

27. On 5 April 2017 the Przemyśl Regional Court quashed the decision of 3 January 2017 on the grounds that, given that the applicant had for a long time been legally resident in Poland, pursuing his studies there, it was doubtful that there was a real risk of his absconding. Moreover, the appellate court found the conclusion that the applicant was a security threat highly hypothetical and arbitrary.

28. On 5 April 2017 the applicant left the remand centre.

29. On 10 June 2016 the applicant applied for asylum and international protection. He submitted that if returned to Iraq, he would be at real risk of persecution by the pro-Shia militia and government, given that his family was Sunni Muslim, that he had testified in court against a person linked with radical Shia militia, and that he had abandoned his religion and become an atheist.

30. On 7 December 2016 the head of the Aliens Office issued, of its own motion, a decision prohibiting all access to the classified part of the applicant’s file by the applicant or his lawyer.

31. On 20 December 2016 the applicant’s lawyer appealed against that decision.

32. On 25 January 2017 the head of the Aliens Office refused to grant access to the classified part of the file to the applicant’s lawyer.

33. On 31 January 2017 the Refugee Board ( Rada do Spraw Uchodźców ) quashed the decision of the head of the Aliens Office dated 7 December 2016 and discontinued the proceedings. It was held that the prohibition of access to classified information could not legally be issued of the office’s own motion. The authority should have first informed the party to the proceedings that the case file contained classified information and acted only upon an application to have access to that part of the file.

34. On 3 February 2017 the head of the Aliens Office refused to grant access to the classified part of the applicant’s case file to the Helsinki Foundation for Human Rights, an NGO which had joined the applicant’s proceedings for international protection.

35. On 5 October 2017 the applicant’s lawyer asked to be granted access to the classified part of his client’s case file.

36. On 15 February 2017 the head of the Aliens Office decided not to grant asylum or international protection to the applicant. This decision was based on the material that included the classified information concerning the applicant. The authority found it confirmed that the applicant’s relatives and the inhabitants of his Sunni village had been attacked by Shia militia led by the person against whom the applicant claimed to have testified in an Iraqi court. Conversely, the authority considered that the applicant had failed to produce any proof that he had indeed testified against that person – despite being given adequate time to have his family obtain a relevant document from the Iraqi authorities. Nor did the applicant prove that he had personally been subjected to persecution. Prior to coming to Poland, he had been living and working in another part of the country (Iraqi Kurdistan). He had not asked for asylum when he had first come to Poland. The authority also found that, in Iraq, atheists were not subject to any punishment or State persecution, although such risk existed in areas controlled by Islamist groups. Lastly, the authority found that, in the light of the classified material, the applicant had acted against the aims and principles of the United Nations and, as such, did not qualify for asylum or for the complementary regime of international protection, on the grounds that he was a threat to national security.

37. On 1 March 2017 the applicant appealed against that decision submitting, inter alia , that he had not been granted access to the classified material which was the basis for the contested decision.

38. On 31 March 2017 the Refugee Board dismissed the applicant’s appeal, upholding the decision of 15 February 2017. The applicant was instructed that he was entitled to appeal against the decision within the statutory time-limit of thirty days.

39. On 11 April 2017 the head of the Aliens Office dismissed the applicant’s lawyer’s request to have access to the classified material in the applicant’s case file (see paragraph 29 above).

40. On 5 May 2017 the Helsinki Foundation for Human Rights lodged an appeal against the Refugee Board’s decision of 31 March 2017.

41. On 24 November 2017 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) dismissed this appeal and upheld the Refugee Board’s decision of 31 March 2017.

42. On an unspecified date and on 5 January 2018 the Commissioner for Human Rights and the applicant’s lawyer lodged cassation appeals against that decision.

43. On 23 November 2018 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal lodged by the Commissioner for Human Rights and, following the cassation appeal by the applicant’s lawyer, quashed the judgment issued by the Warsaw Regional Administrative Court on 24 November 2017, as well as the relevant administrative decisions issued by the Refugee Board and the head of the Aliens Office.

44. On 23 September 2019 the head of the Aliens Office discontinued the proceedings given that the applicant had, in the meantime, left the country (see paragraph 45 below).

45. As established by the head of the Aliens Office (see paragraph 43 above), the records of the Border Guard showed that on 5 April 2017 the applicant “crossed” the border (border crossing not indicated) and left Poland. The applicant’s lawyer submitted that on 5 April 2017 the applicant had been expelled from Poland. In particular, he had been forcibly taken from the detention centre by agents of the Internal Security Agency, administered an injection and put on a plane to Iraq.

46. The applicant currently lives in Baqubah, in Iraq.

COMPLAINTS

47. The applicant complains, relying on Articles 6 and 13 of the Convention, as well as on Article 1 of Protocol No. 7 to the Convention, that he was expelled from Poland without being able to benefit from the procedural and substantive guarantees against arbitrary interference with his rights by public authorities.

48. Firstly, the applicant complains that he was expelled from Poland even though he had appealed against the first expulsion decision and the appellate proceedings had been adjourned. It follows that, in practice, the existing remedies to challenge his expulsion did not have, as they should, a suspensive effect.

49. Secondly, the applicant submits that all the decisions issued in his respect by the Polish immigration authorities and courts were issued without a proper analysis of the classified material which, the applicant believed, consisted of two documents: the application to have him expelled, filed by the head of the Internal Security Agency with the Karpacki Division of the National Border Guard on 28 September 2016; and a letter written by the Internal Security Agency on 25 November 2016, the content of which was unknown to the applicant.

50. In connection with the above, the applicant essentially complains that the authorities’ refusal to grant him and/or his lawyer access to the classified information pertaining to the national security considerations that were at the core of his proceedings for asylum and international protection hindered his defence and rendered the proceedings unfair. This also rendered the court’s review of the impugned administrative decisions ineffective.

QUESTIONS TO THE PARTIES

1. Did the decision to expel the applicant – an alien who was lawfully resident in the territory of the respondent State – comply with the procedural requirements of Article 1 of Protocol No. 7?

2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 1 of Protocol No. 7, as required by Article 13 of the Convention?

3. The Government are asked to describe and to document the factual circumstances surrounding the applicant’s departure from Poland on 7 April 2017 (see paragraph 45 of the Statement of Facts). In particular, the Government are asked to furnish the relevant records showing the hour of the applicant’s discharge from the detention centre; the hour at which the court’s order to lift the applicant’s detention was issued; the hour and the means whereby the applicant crossed the Polish border, as well as the name of the border crossing; and any other information or record which may be of relevance.